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House of Lords

House of Commons
Joint Committee on
Human Rights

Deaths in Custody:
Interim Report
First Report of Session 2003–04

HL Paper 12
HC 134
House of Lords
House of Commons
Joint Committee on
Human Rights

Deaths in Custody:
Interim Report
First Report of Session 2003-04

Report and Written Evidence

Ordered by The House of Lords to be printed


15 December 2003
Ordered by The House of Commons to be printed
15 December 2003

HL Paper 12
HC 134
Published on 26 January 2004 by authority of the House of Lords and
the House of Commons London: The Stationery Office Limited
£17.50
JOINT COMMITTEE ON HUMAN RIGHTS

The Joint Committee on Human Rights is appointed by the House of Lords and
the House of Commons to consider matters relating to human rights in the
United Kingdom (but excluding consideration of individual cases); proposals for
remedial orders, draft remedial orders and remedial orders.

The Joint Committee has a maximum of six Members appointed by each House,
of whom the quorum for any formal proceedings is two from each House.

Current Membership

HOUSE OF LORDS HOUSE OF COMMONS


Lord Bowness Mr David Chidgey MP (Liberal Democrat, Eastleigh)
Lord Campbell of Alloway Jean Corston MP (Labour, Bristol East) (Chairman)
Lord Judd Mr Kevin McNamara MP (Labour, Kingston upon Hull)
Lord Lester of Herne Hill Mr Richard Shepherd MP
Lord Plant of Highfield (Conservative, Aldridge-Brownhills)
Baroness Prashar Mr Paul Stinchcombe (Labour, Wellingborough)
Mr Shaun Woodward MP (Labour, St Helens South)

Powers
The Committee has the power to require the submission of written evidence and
documents, to examine witnesses, to meet at any time (except when Parliament
is prorogued or dissolved), to adjourn from place to place, to appoint specialist
advisers, and to make Reports to both Houses. The Lords Committee has power
to agree with the Commons in the appointment of a Chairman.

Publications
The Reports and evidence of the Joint Committee are published by The
Stationery Office by Order of the two Houses. All publications of the Committee
(including press notices) are on the internet at
www.parliament.uk/commons/selcom/hrhome.htm. A list of Reports of the
Committee in the present Parliament is at the back of this volume.

Current Staff
The current staff of the Committee are: Paul Evans (Commons Clerk), Ian
Mackley (Lords Clerk), Professor David Feldman (Legal Adviser), Róisín Pillay
(Committee Specialist), Duma Langton (Committee Assistant) and Pam Morris
(Committee Secretary).

Contacts
All correspondence should be addressed to The Clerk of the Joint Committee on
Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P
3JA. The telephone number for general inquiries is: 020 7219 2467; the
Committee=s e-mail address is jchr@parliament.uk.
1

Contents
Report Page

Report 3
The Inquiry 3
Background 3
Call for Evidence 4
Responses 4
Progress of the Inquiry 5

Formal Minutes 6

List of Written Evidence 7


3

Report
The Inquiry
1. We announced our inquiry into human rights and deaths in custody in July 2003. The
inquiry considers deaths in prisons, police detention, immigration detention and detention
under the Mental Health Act, as well as other deaths in the custody of the State. The
inquiry sets out to consider the problem of deaths in custody from a human rights
perspective, in particular in terms of the obligation to protect the right to life under Article
2 of the European Convention on Human Rights, incorporated into UK law by the Human
Rights Act 1998.

Background
2. We issued a call for evidence in July 2003. In it we noted that Government figures
indicate that the numbers of deaths in custody are high and are increasing. Our inquiry
responds to this, and has two aspects.

3. First, we wish to assess how a human rights approach to the management of prisons and
other places of detention can assist in preventing deaths in custody. Under the European
Convention on Human Rights there is a positive obligation on the UK, and on the
responsible public authorities, to take steps to protect the right to life,1 the right to freedom
from inhuman and degrading treatment2 and the right to physical integrity3 of those in the
custody of the State who are known to be at risk of harm. The inquiry is concerned with
how these obligations are complied with through ensuring adequate and appropriate
conditions of detention; by appropriate healthcare provision; in the management of places
of detention; and by the monitoring of prisoners at risk.

4. Secondly, the inquiry examines how deaths in custody are investigated, in light of the
requirement of Article 2 of the ECHR that there should be an effective, independent official
investigation following a death in custody. The European Court of Human Rights has set
out the requirements of such an investigation.4 It specified that an investigation should be:
on the initiative of the State; independent, both institutionally and in practice; capable of
leading to a determination of responsibility and the punishment of those responsible;
prompt; allowing for sufficient public scrutiny to ensure accountability; and allowing the
next of kin sufficient opportunity to participate. This inquiry is being conducted at a time
when a number of measures are being taken or considered to provide more effective and
independent mechanisms of investigation into deaths in custody. These include: proposed
changes to the inquest system, following the Fundamental Review,5 the imminent
establishment of the new Independent Police Complaints Commission (IPCC); and
proposals for a more independent system of investigations of deaths in prisons.

1 Article 2
2 Article 3
3 Article 8
4 In Jordan v UK
5 Death Certification and Investigation in England, Wales and Northern Ireland, the Report of a Fundamental Review,
2003
4

Call for Evidence


5. In our call for evidence we invited respondents to address the following specific points—

— What are the main causes of deaths in custody? Are there any common factors? Are
there particular aspects of conditions of detention, or the treatment of detainees, or the
cultural background of prisoners or prison officers, that contribute to:

x suicide and self-harm in custody?

x other deaths or injuries in custody?

— What practical steps have already been taken, and what further steps need to be taken
to prevent:

x suicide and self-harm in custody?

x other deaths or injuries in custody?

— What can a human rights approach to conditions of detention and management of


detention facilities contribute to the prevention of deaths in custody?

— What can be done to foster a greater “human rights culture” in prisons and other
detention facilities?

— Are the Article 2 ECHR requirements of an effective, prompt and independent


investigation of deaths in custody, with effective participation by the next-of-kin, met
by:

x the coroner’s jurisdiction, including the inquest;

x investigations by the Prison Service;

x investigations by the new IPCC;

x criminal prosecutions;

x civil proceedings; or

x any other avenues of investigation?

— If not, what should be done to satisfy the Article 2 ECHR requirement of an


independent, transparent and effective investigation?

Responses
6. We received responses from a wide range of organisations and individuals, including
evidence from the Home Office and the Department of Health, from the relevant
investigatory authorities and inspectorates, and from NGOs, academics, lawyers, and
relatives of those who have died in custody. These submissions are printed as appendices to
this report. While the Committee’s inquiry into the complex issues raised by deaths in
custody is still continuing, this report is designed to make available the written evidence we
have so far received in connection with this inquiry.
5

Progress of the Inquiry


7. We will shortly begin to hear oral evidence in relation to this inquiry. We would
welcome further written evidence until 30 March 2004. We hope to publish our final report
and conclusions on this inquiry in the later part of 2004.
6

Formal Minutes
Monday 15 December 2003

Members Present:

Jean Corston MP, in the Chair

Lord Bowness Mr David Chidgey MP


Lord Campbell of Alloway Mr Kevin McNamara MP
Lord Judd Mr Paul Stinchcombe MP
Lord Lester of Herne Hill
Baroness Prashar

The Committee deliberated.

Draft Report [Deaths in Custody: Interim Report], proposed by the Chairman, brought up
and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 7 read and agreed to.

Resolved, That the Report be the First Report of the Committee to each House.

Ordered, That certain papers be appended to the Report.

Ordered, That the Chairman do make the Report to the House of Commons and that
Baroness Prashar do make the Report to the House of Lords.

[Adjourned till Monday 12 January at a quarter past Four o’clock.


7

List of Written Evidence


Government

1. Home Office Ev 1
2. Department of Health Ev 14
3. HM Prison Service Ev 26

Inspectorates and Commissions

4. Commission for Racial Equality Ev 32


5. Mental Health Act Commission Ev 37
6. Police Complaints Authority Ev 47
7. Prisons and Probation Ombudsman Ev 67

Organisations

8. Bail for Immigration Detainees Ev 68


9. The Committee on the Administration of Justice Ev 73
10. The Children’s Society Ev 81
11. Doughty Street Chambers Ev 85
12. Howard League for Penal Reform Ev 87
13. INQUEST Ev 88
14. The Law Society Ev 101
15. Liberty Ev 102
16. The Medical Foundation for the Care of Victims of Torture Ev 106
17. MIND Ev 107
18. Prison Reform Trust Ev 113

Individuals

19. Mr Tony Ashley Ev 117


20. Dr Leonie Howe Ev 118
21. Dr Alice Mills Ev 129
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Joint Committee on Human Rights: Evidence Ev 1

Written evidence
1. Memorandum from the Home OYce

DEATHS IN POLICE CUSTODY

Introduction
1. The Home OYce welcomes the Joint Committee’s inquiry into this complex area and oVers its full co-
operation and participation. Any death in police custody is a tragedy and police forces across the country
are taking a whole range of actions to ensure that such deaths are kept to a minimum. The Human Rights
Act has incorporated the provisions of the European Convention of Human Rights into UK law and the
Home OYce is committed to its principles and requirements and is determined to ensure that all those held
in police custody are as safe as possible. Reducing all types of death in police custody, but especially suicide
and self-harm, is a key objective and a great deal of work has been and continues to be done in this area.
2. The Home OYce publishes annual statistical bulletins to record deaths in police custody or those that
follow any kind of contact with the police. Copies of bulletins for the years 1999–2000, 2000–01, 2001–02
and 2002–03 are attached as background briefing.1 Prior to April 2002, deaths in police custody were broken
down as:
Category A—where the deceased was in any type of police detention or hospital having been arrested for
an oVence;
Category B—this category was defined as where the deceased was otherwise in the hands of the police or
death resulted from the actions of a police oYcer in the purported execution of his duty.
3. With eVect from 1 April 2002 the Home OYce introduced new and broadened categories covering all
deaths of members of the public during or following police contact. This was done because it is considered
important to record all deaths that follow contact with the police, however minimal. The categories are
as follows:

Category 1

Fatal road traYc accidents involving the police


This definition covers all deaths of members of the public resulting from road traYc incidents involving
the police, both where the person who dies is in a vehicle and where they are on foot.

Category 2

Fatal shooting incidents involving the police


This definition covers circumstances where police fire the fatal shots.

Category 3

Deaths in or following custody


This definition covers the deaths of persons who have been arrested or otherwise detained by the police.
It also includes deaths occurring whilst a person is being arrested or taken into detention. The death may
have taken place on police, private or medical premises, in a public place or in a police or other vehicle.

Category 4

Deaths during or following other types of contact with the police


This definition covers circumstances where the person dies during or after some form of contact with the
police which did not amount to detention and there is a link between that contact and the death.

Deaths in Police Custody—2002–03


4. The Home OYce has not yet published the statistics bulletin on deaths for 2002–03—this will be done
in the autumn. The bulletin will be made available to the Select Committee as soon as it is published.

1 Not printed here.


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Ev 2 Joint Committee on Human Rights: Evidence

Q1. What are the main causes of deaths in police custody? Are there any common factors? Are there particular
aspects of conditions of detention, or the treatment of detainees, or the cultural background of detainees that
contribute to?
— Suicide and self-harm in custody?
— Other deaths or injuries in custody?
The table below sets out the main causes and numbers of deaths in police custody since 1999:

Road
Alcohol/ TraYc Natural
Year Drugs Accidents Shootings Suicides Causes Restraint Misc Total
1999–2000 15 (3) 22 3 11 (3) 5 (3) 2 12 70
2000–01 12 (4) 16 2 5 (2) 5 (1) — 12 52
2001–02 11 (2) 34 4 4 (1) 9 (1) 2 6 70
2002–03 13 (2) 40 3 11 (2) 11 (1) 2 19 104

The figures in brackets refer to deaths which occurred in police stations.

Deaths during or following contact with the police—statistics for 2002–03


Although the statistics for 2002–03 appear to have risen (from 70 in 2001–02 to 104 this year) they are
not really comparable. Prior to April 2002, there were only two categories to record deaths—those that
occurred where the person was detained in police custody, and where the deceased was otherwise in the
hands of the police. If the previous definitions had been used, the total for 2002–03 would be 77.
With eVect from 1 April 2002, the Home OYce introduced revised categories covering deaths in police
custody—deaths of members of the public during or following police contact. This was done to ensure that
all relevant deaths involving any form of contact with the police were included in the statistics; and to draw
a clear distinction between those where there was direct contact with the police and those where it was
less obvious.

Suicide/self harm deaths


In 1999, of the 14 suicides all were male and 13 were white. Three people hanged themselves in police cells
and the rest committed suicide following some other form of contact with the police.
In 2000, all suicides were white males and two people hanged themselves in police cells.
In 2001, all suicides were white males and all deaths occurred outside police detention, but following some
form of contact with the police.
In 2002, two white males hanged themselves in police stations. Nine white males, one black male and one
white female committed suicide following some other form of contact with the police.
Age seems to have no bearing on those who commit suicide—ages range between 17 and 60.

Road traYc accidents


People killed in road traYc accidents were almost exclusively white males and approximately 90% were
under the age of 30, with many of those under the age of 25. Almost all these deaths were due to police cars
pursuing vehicles that were either suspected of being stolen or being driven in an erratic manner. In 2002–03,
we started recording any death that followed some sort of contact with the police. We have therefore
included eight deaths that occurred to either pedestrians or other drivers while the police were pursuing
people committing road traYc oVences.

Alcohol/drug-related deaths
People who suVer alcohol related deaths tend to be white males over the age of 35, and although they have
died after some form of contact with the police, there is usually a history of alcohol abuse, which has largely
contributed to their deaths.
The main cause of drug-related deaths in police custody is ingestion of controlled substances following
arrest. Again, these tend to be white males, although usually under the age of 35.
Since 1999, eight people from an ethnic minority background have died as a result of either alcohol or
drugs; and five women have died as a result of ingesting drugs.
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Joint Committee on Human Rights: Evidence Ev 3

Fatal shootings by police


Since 1 April 1999, 12 people have been fatally shot by the police. All were males, and 10 were white. Ages
ranged between 19 and 62. In all cases, before the police fired the fatal shot, they challenged the individual
to disarm.
Five of the shootings arose after domestic incidents, where people had threatened a member of their
family with either a gun (real or fake) or a knife. Two of these incidents developed into siege situations.
Five incidents concerned people armed with firearms in town centres and threatening others. One person
was diagnosed with schizophrenia. In another incident, plain clothes police attempted to arrest two drug
dealers, one of whom shot at the police. Police returned fire, killing the marksman. In another case, police
were informed that the deceased was armed. When challenged, he threatened police with a handgun and
was shot.

Deaths from natural causes


Every death from natural causes (except three) that has occurred since 1 April 1999 has been of older white
males. One black male in his fifties died of heart failure. One black male of 23 and one white male of 26 died
in custody, but all the others were over the age of 45 and almost all died of heart attacks following arrest.
Six deaths occurred in police stations.

Use of restraints
Since 1999, six deaths have occurred where the use of restraints was a primary factor. Three of these were
white males over the age of 40. One had a history of mental disorder and was restrained to prevent his
aggressive behaviour towards members of the public; four were restrained because of their aggressive
behaviour towards the police or members of their families and the public. The sixth person who died whilst
being restrained was an Asian male of 26 who was restrained for causing a disturbance.
Other people have died whilst in restraints, but this was not the primary cause of death. In the majority
of cases, they were restrained due to their violent behaviour caused by drugs, and it was drug overdoses that
caused their deaths.

Miscellaneous deaths
This category covers accidental deaths (other than road accidents) and misadventure.

Q2. What practical steps have already been taken, and what further steps need to be taken to prevent:
— Suicide and self-harm in custody?
— Other deaths or injuries in custody?
In May 2003, the Police Leadership and Powers Unit of the Home OYce wrote to all Chief OYcers, setting
out the key initiatives that could be taken to reduce the numbers of deaths in police custody. The letter was
intended to raise forces’ awareness of the additional measures they could take or procedures they could
adopt. These are set out below.

Organisation of Custody Facilities


A number of forces already concentrate custody facilities at a smaller number of police stations where
superior provision for detention and care is available. This is certainly a positive development in terms of
reducing deaths in custody and merits wider consideration.
Some forces are also creating a custody specialism with its own management and command structures.
This also deserves further attention as a means of increasing the professionalism, knowledge and skills of
those responsible for the custody of detainees. A number of forces now operate custody user groups where
oYcers involved in this area of work can share experience, learning and skills amongst themselves and with
other professionals involved in the custody environment. This is an excellent way of spreading good practice,
particularly in relation to critical issues linked to deaths in custody.

Custody Officer Training


CENTREX provide a national custody oYcer training programme which is reviewed and updated every
six months. Many forces now use this programme or have amended their existing courses in light of the
national programme. Many forces provide two or three weeks training before oYcers are appointed to
custody duties and refresher training is becoming much more common. Input into the central framework
comes from bodies such as the ACPO Medical Working Group. The key areas regarding deaths in custody
are: risk assessment, adequate checking on vulnerable prisoners, first aid, liaison with medical personnel,
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Ev 4 Joint Committee on Human Rights: Evidence

searching, hazard awareness, record keeping, and conflict resolution. It is imperative that all new custody
staV are trained appropriately (and given refresher training as necessary). Forces need to be proactive in
seeking custody staV’s views on where they would benefit from additional training on deaths related issues.
A number of forces have introduced additional training for operational oYcers in the searching of
detainees in order to identify and remove all possible ligatures or items which could be used to cause self
harm.
The Metropolitan Police have produced a training video which gives various scenarios which could lead
to a death in custody, whether in cells or otherwise. This is used by a number of forces as part of their custody
oYcer-training package. Another video, “Their lives in your hands”, has been produced by South Wales
Police. This analyses a death by suicide in custody and includes open input by the custody oYcer on duty
at the time. He describes how the incident aVected him, his colleagues and family.

Risk Assessment and Information


Prisoner risk assessment has historically been a diYcult issue within the police service, but many forces
are making rapid strides to improve their procedures and ensure that structured processes are in place to
assess and document specific risks presented by detainees coming into custody. It is encouraging to see that
all forces have responded to Home OYce Circular 32/2000 that relates to prisoner risk assessment, including
the Prisoner Escort Record form. The responses vary from introducing a formal written risk assessment
process to amending previously used systems.
Home OYce Circular 28/2002, “Learning the lessons from adverse incidents”, highlighted a case where
a detainee was returned to his cell without having his trainers removed and subsequently hanged himself
with his shoe laces. It was suggested that laces were not always removed due to the requirement for
proportionality under the Human Rights Act. However, under Article 2 of the European Convention on
Human Rights “Everyone’s right to life shall be protected by the law”, and the police must have the highest
regard for this. It is worth re-inforcing that items such as shoelaces and belts that can most easily be used
for self-harm should always be removed, especially where there are grounds for believing that someone may
be a suicide risk. There is no legal obstacle under the Human Rights Act to doing this.
Many forces have a local index of detainees who have “self harmed” whilst in custody. These are normally
computerised and many form part of the custody handling system. Those that form part of the custody
handling systems are configured so that the warning notice appears on the screen whenever that person is
being booked in.
Some forces have introduced written guidelines for custody oYcers, which advise on identification of risks
to ensure that additional supervision is given where appropriate. Other forces have introduced written
briefing instructions to custody staV who are given the duty of constantly monitoring any detainee who
presents a high risk.
Some forces have piloted a system whereby details of incidents relating to individuals which take place in
prisons, which would assist and inform future risk assessments of that individual are communicated to the
local force. The force then evaluates the information and, where appropriate, it is placed on the PNC. The
ACPO Prison Intelligence Group is currently evaluating this system.
One force is considering introducing a policy whereby all detainees who are suspected of having
swallowed drugs or are suspected of being “mules” would be taken directly to hospital. This form of action
is subject to the police surgeon’s decision on what course of action to take if there is a perceived immediate risk.

Use of CCTV to Monitor (Vulnerable) Detainees in Custody Suites


Many forces have CCTV (including sound) at their custody reception points and CCTV (vision only) in
all corridors, entrances, exits etc. Some have installed CCTV cameras in a limited number of cells suitable
for vulnerable persons. The eVective use of CCTV equipped cells for vulnerable prisoners presupposes early
and accurate identification of such persons by custody staV but the use of CCTV does not remove the need
for eVective monitoring and checking. There is considerable scope for these systems to reduce the overall
level of risk and all forces are encouraged to consider how they can most usefully be applied.

Designing out Suicide/Self Harm Risks from Cells


The Home OYce Building and Estate Management Unit (BEMU) is a source of expertise in the area of
designing out flaws in custody suites (including cells) and police station specifications. General guidance on
making police cells safer was included in Home OYce Circular 28/2002, “Learning the Lessons from
Adverse Incidents”.
All new cells in all forces are constructed in accordance with the Home OYce design guide. Some forces
have instigated periodic custody unit inspection by oYcers from other custody units. In this way, familiarity
with cells is alleviated in the identification of possible ligature points. Most forces have replaced the old “T”
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Joint Committee on Human Rights: Evidence Ev 5

shaped cell door handles with anti-ligature handles. All forces have local instructions which state that cells
hatches should be kept closed at all times. Some have attached a notice to the outside of each cell door
reminding staV of this instruction.
Where forces have a totally computerised system, many have been designed or amended to give reminders
that the maximum time since a detainee was last checked is almost complete. This can be set according to
the instructions of the custody oYcer following the risk assessment.
The cells in some forces are regularly searched by experts to ensure that any dangerous objects, which
have been missed at a time the detainee was searched and are later secreted in a cell, are safely removed.
Many forces provide ligature cutters on cell key rings, or at various places throughout the custody units,
or as a personal issue to all custody staV. Some forces use a restraint belt to prevent self-harm and suicide
attempts by detainees who have been identified as presenting a high risk.

Encouraging the Use of Innovative New Technology


Some forces have been trialing a life signs monitoring system which uses low power microwave
transceivers to detect movement within custody cells. Progressive warnings are sounded if an occupant’s
breathing becomes very low or ceases altogether. The system is currently being assessed. Early indications
are favourable and a further letter will be sent to police forces shortly.
There are also broader design and technology issues to take account of in establishing good practice. For
example, to reduce self harm some forces supply safer unbreakable plastic cutlery for use by detainees while
the majority of forces only supply unbreakable spoons to detainees irrespective of the meal being provided.

Policing the Mentally Ill


There are currently several strands of work focused on improving police practice in relation to mentally
ill individuals. Together with the Department of Health and ACPO, the Home OYce is considering the
development of national protocols covering the interaction between the police and health services in dealing
with the mentally ill, and significant progress will be made in 2003–04. The Department of Health envisages
a two-year project regarding this development. The revision of the PACE Codes of Practice has further
strengthened protections for mentally ill detainees, particularly in terms of assessing their vulnerabilities and
fitness for interview. In addition, the review of the Mental Health Act that is underway recognises that police
cells are not generally appropriate places for assessing whether a person needs medical treatment.

Provision of Medical Services at Police Stations


The quality of medical services at police stations is inextricably bound up with the delivery of the police
surgeon service. The Home OYce Working Group on Police Surgeons made a number of recommendations
about the organisation of the service and connected issues such as training, accreditation and the delivery
of care. Linked to that, there is scope to improve the availability and timeliness of medical services by
enabling a wider range of healthcare professionals such as nurses to take a broader role in the custody suite.
The intention is to move towards a position where there is a significantly greater role for registered
healthcare professionals within custody suites, but where they work in partnership with police surgeons, and
police surgeons retain clearly defined responsibilities to intervene where their broader skills are likely to be
required. As well as improving the standard and delivery of clinical treatment for detainees, the introduction
of nurses and other healthcare professionals to police custody suites is seen as a key initiative in helping to
reduce the number of deaths in police custody.
Increasing the range of custody healthcare professionals is expected to result in increased flexibility,
improvements in response times and the opportunity for best value eYciencies in the way healthcare is
delivered in custody suites.
Some forces have reviewed their provision of police surgeon services and have brought in new
requirements regarding their training in forensic medicine and medical jurisprudence. There are some police
surgeons who refuse to prescribe drugs to detainees within their first 6–12 hours of detention so that there
is no possibility of overdose caused by the detainee’s consumption of drugs prior to arrest. The national
guidance on “Substance Misuse Detainees in Police Custody: Guidelines for Clinical Management” provides
well documented information in regard to this, and stresses the importance of when a police surgeon should/
should not administer drugs to a detainee.
The ability to read the handwriting of medical staV is crucial to the risk assessment process and some
forces ask the custody oYcer to check the custody record entries of police surgeons to check legibility before
the surgeon leaves the unit.
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Ev 6 Joint Committee on Human Rights: Evidence

The Police and Criminal Evidence Act 1984—Codes of Practice


— The Codes of Practice deal with contact between the police and the public. They regulate police
powers and procedures in the investigation of crime and set down safeguards and protections for
members of the public.
— The Codes are subject to regular review and measures currently proposed in the Criminal Justice
Bill look to speed up and make more eVective the process by which the Codes can be updated.
— It is essential that the Codes are relevant, eVective and accurate to the needs of the public and the
investigation of crime, and that they ensure there is a high level of protection and safeguards for
people in police custody.
— The latest revisions of the PACE Codes of Practice were issued on 1 April 2003. This revision
includes a new section on identifying needs for urgent health care intervention. If a person fails to
meet the following criteria, an appropriate health care professional or an ambulance must be
called.
— Rousabilty—can the detainee be woken?
— Response to questions—can they give appropriate answers to basic simple questions?
— Response to commands—can they respond appropriately to simple commands?
— Custody OYcers are reminded to take into account the possibility or presence of other illnesses,
injury or mental condition, as a person who is drowsy and smells of alcohol may also have the
following:
— Diabetes;
— Epilepsy;
— Head injury;
— Drug intoxication or overdose;
— Stroke.

Metropolitan Police Service Deaths in Custody Group


The Metropolitan Police Service (MPS) has instigated a Deaths in Custody Group to consider how best
to ensure the safety of detainees and the attached summary at Appendix A shows how the MPS is developing
best practice in this area, including improved cell design, widening the range of healthcare professionals
involved in the treatment of detainees, and involving other agencies to ensure detainees receive appropriate
care in police custody.

Initiatives to Reduce Alcohol/Drug-related Deaths


There has been recognition for many years that people who are incapable through drink or drugs would
usually be better and more safely cared for in dedicated facilities than at a police station. Intoxication,
whether through alcohol or drugs, remains a significant factor in some deaths in custody. It also places a
severe burden on the police who have to deal with severely intoxicated people who might be better cared for
elsewhere. Recent Home OYce research studies have indicated that alcohol/drugs are a factor in almost a
third of arrests and have recommended a number of approaches related to the care and management of
intoxicated detainees in custody suites, including the provision of alternative settings for the care and
treatment of those who are incapable through drink or drugs.
Arrest referral and diversion pilots have an extremely important contribution to make in improving the
framework within which intoxicated detainees are handled and we are giving serious consideration to the
use of alcohol treatment centres as an alternative to police custody for intoxicated detainees. At present only
a minority of forces have dedicated alcohol referral schemes for those in police custody and even fewer forces
are seeking to divert intoxicated people to alternative treatment facilities. Historically there have been
examples of good practice, for example the St Anne’s Centre in Leeds, and arrest referral and diversion
schemes at Holborn and Watford will oVer an opportunity in the short term to evaluate innovative best
practice.
There is scope for broader action in this area across the police service, particularly in terms of pilot
projects. Some forces have established policies of taking the grossly intoxicated and communication
incapable arrestee to hospital for assessment or at least to have them assessed immediately by the police
surgeon before detention for any length of time is contemplated.
In May 2003, the Police Complaints Authority (PCA) published a report into drug-related deaths in
police custody.
The report highlights the need for improvements in police training to raise awareness of the risks
associated with substance misuse and also highlights the need for improvements in the medical support
services available to assist police oYcers. The report cites more systematic screening of substance misuse
problems by custody staV or the availability of trained custody nurses equipped to deal with substance
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Joint Committee on Human Rights: Evidence Ev 7

misusing populations as possible mechanisms for managing the risks associated with substance misuse
detainees. The report also highlights the need to improve the training of Forensic Medical Examiners
(FMEs) in the areas of alcohol, drugs, mental health and dual diagnosis and to address the complex funding
issues aVecting the delivery of the FME service in some areas of England and Wales.
We are already addressing the issues highlighted in the PCA Report:
The revised PACE Codes of Practice permit healthcare professionals in custody suites and a current
survey of forces has indicated that at least 11 forces are already using nurses in their custody suites, whilst
a further nine forces are actively considering this option. The policy intention behind the revisions to Code
C is to increase the scope for widening the range of healthcare professionals involved in the treatment of
detainees in custody suites. The revisions are intended to result in increased flexibility, improvements in
response times and the opportunity for best value eYciencies in the way healthcare is delivered in custody
suites.
— Annex H of the revised PACE Code of Practice C provides an observation list for custody oYcers
to follow for detainees with known risks, including drug intoxication.
— We issued guidance to police forces about detainee risk assessment in Home OYce Circular 32/
2000. This circular sets out minimum standards for risk assessment procedures to be applied to all
detainees coming into police custody and covers the key risk factors including drug/alcohol and
mental health issues.
— Drug testing of detainees is currently being piloted in certain police areas in England and Wales
under provisions introduced by the Criminal Justice and Court Services Act 2000. These allow, in
certain circumstances, for the taking of saliva samples from persons in police detention, and at
other points in the criminal justice system, to test for the presence of specified Class A drugs (heroin
and cocaine/crack). From 1 April 2003 drug testing in police custody is being extended to 30 Basic
Command Units and will assist in targeting those arrestees who were not picked up or engaged at
the initial booking-in stage.
— We set up an Advisory Forum on Police Surgeons in April 2002, which not only provides a
national oversight and monitoring of the police surgeon service but is also tasked with facilitating
the professional development of the service. Its programme of work includes developing and
monitoring centres of excellence for training police surgeons and overseeing assessment, training
and accreditation procedures.
— First aid training is included in mandatory training for probationer police oYcers and national
occupational standards have been developed for Custody OYcers.

“Excited Delirium” Syndrome


A delirium is characterised by a severe disturbance in the level of consciousness and a change in mental
status over a relatively short period of time. There is a reduced clarity of awareness of their environment.
The ability to focus, sustain or shift attention is impaired. The individual’s attention wanders and is easily
distracted by other stimuli. The individual is almost certainly disoriented and may not know what year it
is, where they are, what they are doing and the impact of their behaviour. Perceptual disturbances are
common and the person may hallucinate. A delirium is the result of a serious and potentially life threatening
medical condition. Potential causes include infection, head trauma, fever, and adverse reactions to
medications or overdose of illegal drugs such as cocaine and methamphetamines. Any person who is
delirious requires prompt medical evaluation and treatment.
The delirious person is likely to manifest an acute behavioural disturbance. These individuals can appear
normal until they are questioned, challenged or confronted. When confronted or frightened these
individuals can become oppositional, defiant, angry, paranoid and aggressive. Further confrontation,
threats and use of force will almost certainly result in further aggression and even violence. Attempting to
restrain and control these individuals can be diYcult because they frequently possess unusual strength, pain
insensitivity and instinctive resistance to any use of force. As many as five to eight people may be required
to restrain one delirious adult.
The Police Complaints Authority (PCA) recommend the following training for police oYcers to help them
diVerentiate between intoxication and excited delirium syndrome:
— Learn how to recognise the signs of delirium or the initial symptoms;
— Obtain immediate medical consultation and attention for any person who may suVer from a
delirium;
— Do not excite, confront or agitate individuals who are delirious;
— Contain rather than restrain when the individual is not dangerous to self or others;
— Avoid the use of force unless individual is dangerous to self or others;
— Use the lowest level of force necessary as well as a method of restraint that will not cause
asphyxiation; and
— Be cautious and aware of potential side eVects of medication.
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Ev 8 Joint Committee on Human Rights: Evidence

Safer Use of Restraints


A conference entitled “Safer Restraint Conference—Health, Prison and Police”, organised by the Police
Complaints Authority, took place on 17 April 2002. The conference focused on the management of acute
violent incidents and provided an opportunity for best practice in the three services to be disseminated and
new methods of restraint to be discussed, in order to reduce the risk of deaths within the custodial services.
We have held discussions via a cross-government group with colleagues from the Department of Health
(mental health branch, prison health care, NHS Executive and the National Institute for Mental Health) on
police, health service interface issues relating to the management of potentially violent behaviour and the use
of restraint. The group is working to produce joint guidance on local inter-agency protocols and to develop
accredited training in order to reduce the incidence of deaths involving the use of inappropriate restraint
techniques.
The ACPO/Centrex Personal Safety Manual of Guidance should form the basis of all restraint training
for police oYcers. Civilian support staV that come into contact, or have dealings with persons who are
detained in police custody, such as Detention OYcers should also receive training based on this manual. The
content of this manual was extensively researched in terms of the legality of all the technique and tactics
contained within the manual, and the medical implications. Recent cases were considered during this
research process. The manual contains specific sections on restraints, and control techniques. The section
on medical implications includes information on positional asphyxia, excited delirium, and dealing with
persons who may be eVected by alcohol, drugs, or mental illness.
There is a section on Custody Skills that provides guidance on cell extraction and insertion, and tactics to
assist in the safe taking of fingerprints and DNA samples by force when appropriate. Other sections contain
information and guidance on communication skills to assist in the diVusion of potentially violent situations
without the use of force.
The manual is the subject of an annual review and maintenance cycle that should ensure that it remains
a live and valid document. This process will take account of emerging cases that may impact upon use of
force issues, including persons in police custody.
ACPO gives recommendations in respect of the amount of training that police oYcers should receive in
Personal Safety. However, Chief Constables make the final decision as to how much time will be allocated
to Personal Safety training for their oYcers. Unfortunately this varies a great deal from force to force, from
as little as four hours annually up to four days annually. Obviously the amount of training received has a
direct impact upon the eVectiveness of personal safety training, which will aVect all use of force issues,
including those in custody areas. This of course can compromise both police oYcers and subjects alike.
The police service shares a certain amount of common ground with the prison and mental health services
with regard to restraint.
It too views the use of force as a last resort. Indeed, ACPO guidance makes clear that: “Before resorting
to the use of force, police oYcers should use all other methods to achieve the desired outcome of a situation.”
It is also clear from the legal standpoint that oYcers’ use of force should be reasonable, necessary and
proportionate and that each individual is accountable to the law for his or her actions. The police service
shares the same focus on the human rights aspects of the issue and the view that no death in these
circumstances is acceptable.
It uses many of the same control and restraint techniques used in the prison and mental health services.
And it is working both on its own and with them to continually review these techniques, learn lessons from
experience and find alternatives wherever possible.
On the other hand, the context in which the police operate is very diVerent to that of the other two services.
The nature of their role as an emergency service means that they are often dealing with crises and
unpredictable circumstances. They are usually the first port of call, often the first to arrive and accept the
responsibility to act as gatekeepers, dealing perhaps with medical or mental health emergencies until other
agencies arrive.
The environment in which potentially violent incidents unfold is not controlled in the same way as it is
in either prison or mental health settings. The events are spontaneous, the dynamics unknown and oYcers
usually have very little time to assess a situation and plan a response. The challenges they face are
particularly diYcult when the behaviour of those they confront is aVected either by mental illness,
psychiatric disorder or by the consumption of drugs or alcohol.
Moreover, oYcers may have conflicting priorities. At the same time as they have a duty of care towards
the individual, they are also required to protect the public—and themselves—from harm.
In some instances then, restraint will be necessary but the police service is striving to make it a safer option
by following five main steps:
1. Informed by a working group on self-defence and restraint, ACPO establish clear national policy;
individual forces set their policies within this framework.
2. Best practice and procedures are set out in a personal safety manual, the national guidance for all forces
and oYcers.
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Joint Committee on Human Rights: Evidence Ev 9

3. Training is based on the manual and supplemented by first aid training.


4. Equipment is tested, approved and recommended to support best practice, tactics and procedures.
5. Use of force is continually monitored and best practice and procedures reviewed and reformed as
necessary in order to continue to minimise risk.
Training is the key to turning policy into action on the ground. Beyond the fundamental principle that
they must always act within the law, oYcers are taught conflict resolution. The model moves through a
structured approach to threat assessment that enables oYcers to choose an appropriate response including
a level of force. They are also taught to continually reassess the threat so that they can de-escalate or escalate
the use of force as necessary.
At one end of the continuum of force, an oYcer’s presence is often enough to defuse a situation. ACPO
guidance emphasises the importance of good communication. OYcers’ training in verbal de-escalation
techniques is underpinned by many of the same elements found in prison and mental health services
training—body language interpretation, cultural awareness and an understanding of certain medical
conditions, particularly associated with acute behavioural disturbance or the consumption of drugs or
alcohol. It is important that oYcers do not make any assumptions and thereby overestimate the threat.
Where communication, negotiation and the threat of using equipment such as CS spray fail, containment
of the individual is the next option. Ultimately, at the other end of the continuum of course, is the use of
force. The challenge is to ensure that 130,000 oYcers dealing with 1.25 million acts of restraint a year apply
that restraint properly and safely.
The police service is responding to criticism and striving to minimise risk, continually evaluating
techniques and keep oYcers’ training up to date in terms of best practice and the human rights context. The
personal safety manual, for example, devotes a chapter to acute behavioural disturbance, its possible causes
and implications and the signs and symptoms to identify risk factors. Positional asphyxia and the dangers
that neck holds carry inherent risks and are not acceptable.
OYcers’ equipment is also kept up to date and comes into use only after it has been subjected to rigorous
medical scrutiny and evaluation. The police service continues to look for safer alternatives including less
lethal alternatives to firearms.
Ultimately, there is an understanding that public scrutiny and public confidence are vital to policing by
consent and that the police must exercise force ethically, lawfully, restraining someone in the prone position
for too long are covered in similar detail. The manual also clearly states proportionally and with sensitivity
if they are to retain that consent.

Police Pursuits
— Everything should be done to minimise the risk of accidents involving police vehicles. The police
fully recognise that and are aware of the need to maintain a balance between, on the one hand,
responding promptly to emergencies, which may entail the apprehension of oVenders, and, on the
other, ensuring the safety of the public.
— In the late 90s following several high profile fatalities and police oYcers being convicted of serious
driving oVences, ACPO began a general review of police driver training. The resulting report
“Police Pursuit Driver Training” by Rodney Lind, ACC of Wiltshire at the time, was issued in
September 1998. It provided 33 recommendations for chief oYcers to consider.
— Measures are in place, or are in the process of being implemented, which are intended to reduce
the need for high speed chases involving the police.
— There is a nationally agreed ACPO Pursuit Code of Practice.
— Work is going forward on a national basis to implement recommendations from the Lind report
on police pursuit driver training.
— ACPO recognises that the police service has a fundamental duty to equip oYcers with the necessary
training. In December 2000 they launched their new police driver-training course, introducing a
universal standard for driving in England and Wales. An essential element of the course is that
oYcers recognise the need to give priority to public safety above all other considerations such as
attending an incident or apprehending a suspect.
— It is already policy to consider continuously the consequences of a pursuit and whether to break
it oV.
— Operational measures to avoid pursuits or curtail them include the use of helicopters, the early
deployment of tyre deflation devises across the carriageway and tactical pursuit and containment
in which a number of police vehicles are deployed in a planned manner to box in the target vehicle
and bring it safely to a halt.
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Ev 10 Joint Committee on Human Rights: Evidence

— It is right that the police should be able to pursue suspects and respond to emergency situations
without being restricted to speed limits. Accordingly, when it is operationally necessary, the police
have statutory exemption from speed limits and general compliance with red traYc signals.
However, these statutory exemptions do not remove the need for police drivers to exercise the
greatest care.
— The police have statutory exemption from speed limits and general compliance with red traYc
signals. For the first, Section 87 of the Road TraYc Regulation Act 1984 states that no statutory
provision imposing a speed limit on motor vehicles applies to any vehicle when it is being used for
fire brigade, ambulance or police purposes, if observance of the limit would hinder the vehicle in
its purpose. The corresponding provision for red traYc light signals is set out in section 33(1)(b)
of the TraYc Signs Regulations and General Directions 1994.

Q3. What has been done to foster a greater “human rights culture” in prisons and detention facilities? What
more could be done? Would a human rights approach to conditions of detention and management of detention
facilities contribute to the prevention of deaths in custody?

(i) What has been done to foster a “greater human rights culture” in detention facilities?
— The Police Skills and Standards Organisation has developed national occupational standards and
accredited training for custody oYcers in police stations. A key area of training is human rights
which includes the right to privacy and the right to life.
— It is Home OYce policy to ensure that persons detained in police custody receive quality clinical
treatment in a timely manner when required, as our main concern is to ensure the safety and well-
being of both detainees and police custody staV.
— Our aim is to reduce deaths in police custody by improving the quality of healthcare provided in
police custody suites. This includes reducing the time taken to administer medication when
required as part of an individual’s clinical treatment.
— Our objective is the development of multidisciplinary clinical teams within police custody suites
that parallel similar developments in NHS primary care. This would ensure that the standard of
healthcare provision in police custody suites mirrors that in the wider healthcare community.
— We have also introduced legislation to ensure that detainees have access to independent custody
visitors. They are members of the local community who visit police stations unannounced to check
on the welfare of people in police custody. Custody visitors are independent and impartial and
interview detainees out of the hearing of police oYcers, and their reports provide a vital source of
information on the environmental and welfare conditions in which detainees are held.
— The Codes of Practice to the Police and Criminal Evidence Act 1984 require that an appropriate
adult should be called following the detention by the police of a vulnerable person (a juvenile or
someone who is mentally vulnerable). This action provides support for the individual, and
safeguards their human rights by providing an independent validation of the procedures followed
during the period in custody.

(ii) What more could be done? Would a human rights approach to conditions of detention and management of
detention facilities contribute to the prevention of deaths in custody?
In their dealings with detainees, all police oYcers must bear in mind that everyone has a fundamental right
to life, and there is a strong emphasis on that right in all aspects of custody oYcer training and in the day-
to-day care of detainees. However there can be conflict between an individual’s right to privacy and their
right to be protected from self-harm. Home OYce Circular 28/2002, “Learning the lessons from adverse
incidents”, highlighted a case where a detainee was returned to his cell without having his trainers removed
and subsequently hanged himself with his shoe laces. It was suggested that laces were not always removed
due to the requirement for proportionality under the Human Rights Act. However, under Article 2 of the
European Convention on Human Rights “Everyone’s right to life shall be protected by the law”, and the
police must have the highest regard for this. It is worth re-inforcing that items such as shoelaces and belts
that can most easily be used for self-harm should always be removed, especially where there are grounds for
believing that someone may be a suicide risk. There is no legal obstacle under the Human Rights Act to
doing this.
The Home OYce already does a great deal to foster a human rights culture in custody suites. Police follow
an interventionist approach, with regular checks and risk assessments made on mentally vulnerable
detainees, removing shoe laces and other items of clothing that might provide ligatures etc. This attitude
does raise issues under the requirement for privacy under the Human Rights Act, but there is a need to strike
a balance to ensure that the fundamental right to life is protected.
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Joint Committee on Human Rights: Evidence Ev 11

Q4. Are you satisfied that Article 2 ECHR requirements of an eVective, prompt and independent investigation
of deaths in custody, with eVective participation by the next-of-kin, are met by the current system?
In England and Wales, all deaths in custody (along with violent, unnatural deaths and those with
unknown causes) must be referred to the Coroner. The Coroner may then conduct a post mortem, and if
not satisfied that the cause of death is natural, hold an inquest.
To meet ECHR we rely on a mixture of the availability of the following processes: the police investigation,
Police Complaints Authority supervision of police investigations, the Coroner’s Inquest, the Courts,
Judicial Review and the Crown Prosecution Service.
Deaths that occur in the custody of the police are referred to the Police Complaints Authority (PCA). The
PCA may then supervise a police investigation. Whether the PCA choose to involve themselves or not, there
will always be a police investigation and the involvement of the Coroner.
Where there is a suggestion of criminal activity revealed by the Coroner or an investigation report, this
is forwarded to the Crown Prosecution Service who will independently determine if criminal charges should
be brought against any individuals or organisation.
While it is likely that requirements under Article 2 are satisfied through the current arrangements, we have
recognised the need for improvements to be made. To achieve this, new provisions within the Police Reform
Act 2002 create a new system for the handling of complaints and incidents of alleged misconduct by
members of the police service.
We are currently awaiting the decision of the House of Lords in the case R v Secretary of State for the
Home Department ex parte Amin. It is hoped that this will provide a clear indication as to the Government’s
investigatory obligations under ECHR in the event of a death of a person in the care and responsibility of
State agents. Their Lordships are considering whether to uphold the Court of Appeal decision that in this
case the requirements of Article 2 have already been met and an additional independent inquiry need not
be instituted.

How could the eVective investigation of deaths in custody be better ensured?


Under the new police complaints system all deaths in custody will be referred to the IPCC and they will
be able to investigate these independently of the police.
Provisions in the Police Reform Act, 2002, are intended to ensure that all investigations under the new
system comply with the procedural requirements of ECHR wherever these rights are engaged. The IPCC
will be able to determine what type of investigation is appropriate for a particular incident, and they will be
able to choose to investigate a death themselves.
In comparison to the current system for PCA investigations under the 1996 Act, there will be:
— greater involvement of the complainant in the investigation of the complaint;
— greater openness in disclosing materials to the complainant; the legislation will prevent class claims
of public interest immunity in respect of investigation reports;
— more eVective powers to direct that disciplinary charges be laid against police oYcers;
— and (in relation to IPCC investigations) greater independence of the person carrying out the
investigation.
This change will strengthen the range of remedies available following a death in custody that engages
ECHR Article 2.
The Coroner’s system is currently being reviewed to determine if improvements can be made.
Hazel Blears MP
Minister of State Home OYce
18 September 2003

APPENDIX A

MPS DEATHS IN CUSTODY GROUP

Introduction
In November 2002 the Metropolitan Police created the Department of Criminal Justice headed by
Commander Alan Given. The Department’s remit was to bring together the various strands of criminal
justice work that were taking place across several departments and ensure a unified and corporate approach
to delivering on key Government targets around narrowing the justice gap and bringing more oVences to
justice.
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At the time the Dept of Criminal Justice was formed, the MPS’ Property Services Department (PSD)
reported the findings of a survey they had commissioned of MPS custody suites to ascertain if they were fit
for purpose and what action the MPS needed to take to ensure that detainees were held in the safest possible
environment. The results of the survey highlighted areas where improvements were required. As a result of
this Commander Given formed the Death in Custody Group.

The Death in Custody Group


At the first meeting, initial discussions focused on implementing a high-level programme of work to
eradicate potential ligature points from cells and refurbish cell wickets. Prioritisation of work was
undertaken using analysis supplied by the Dept of Professional Standards (DPS), into the number of
instances of self-harm or attempted self-harm by detainees. The demographic make up and political
sensibilities of local communities were also considered as part of an intelligence led approach as the MPS was
concerned to ensure that its policy of improvements within cell areas impacted on members of all community
groups who may come into police custody. This programme of work continues and costs approximately
£6,000 per cell.
Responsibility for preventing deaths in police custody had previously been led by DPS. It was however
decided to use the Death in Custody forum as an opportunity to adopt a holistic approach to the whole issue
of prisoner safety and prisoner care. It was therefore, formally agreed that the Dept of Criminal Justice
would take responsibility for ensuring the safety of detainees whilst being held in custody suites. Should a
death in custody occur at any other stage of a detainee’s interaction with police eg in the back of a prison
van, it would be investigated by DPS/Police Complaints Authority (PCA) and follow up action would be
directed to the most appropriate department.

Membership
In order to take forward this new area of work, it was agreed that the group should meet on a monthly
basis and membership was drawn from the following groups and departments:
— Department of Criminal Justice;
— PSD;
— DPS;
— Directorate of Training;
— Occupational Heath Branch;
— the Police Federation;
— Dept of Information and Technology;
— Dept of Legal Services;
— Linguistic and Forensic Medical Services branch; and
— a Forensic Medical Examiner (FME)/HM Coroner.
In addition to permanent members, the group also seeks expert advice from other organisations with an
interest in preventing deaths in custody. An example of this is the recently (accepted) invitation to the Police
Complaints Authority to sit as members of a small working sub-group, considering the best methods of
deployment and monitoring of CCTV in custody suites.

Areas of Responsibility
In addition to overseeing the cell improvement plan, the group takes responsibility for the following areas:

General building improvement works


— In addition to the work to replace cell wickets and remove potential ligature points, the Death in
Custody Group is also overseeing the general upgrade of cells. This includes replacing doors and
benches and improving toilet areas.
Scope training requirements for custody staV and gaolers at both an initial and refresher level. This
includes:
— conducting training needs analysis;
— liaison with Directorate of Training as to course design and methods of delivery; and
— reviewing the content of courses to ensure they reflect current policy and new thinking.
Act as a conduit for new legislation and policy that eVects operations within custody suites.
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— The Dept of Criminal Justice has a dedicated policy unit, a representative of which sits on the
Death in Custody Group. The policy oYce scopes new legislation and proposes new policies and
methods of operation within custody suites. A current example of their work is the formation of
a sub-group to look at the development of a “Detainee Welfare Folder”, which would contain all
the relevant documentation, including risk assessments, relating to a detainee’s welfare and a
record of any medical care he/she receives whilst in custody.
Oversee the installation and upgrading of CCTV in custody suites and developing corporate operating
procedures and policy.
— As mentioned above a sub-group has been formed to develop proposals in this area and will
produce a policy covering the usage of monitors; how they will be viewed; ergonomic factors;
integrity and security.
Consider the lessons to be learned from DPS inspections and investigations, near misses (incidents where
a detainee has tried to commit suicide or self-harm but fail), recommendations from HM Coroners.
— Occupational Health branch have responsibility for collating details of “near misses” and the
findings from these and the other sources mentioned above are debated at the Death in Custody
meeting and taken into account when training is planned. The Dept of Criminal Justice holds
monthly meetings with Criminal Justice Unit (CJU) managers who are based on boroughs and in
most cases have responsibility for managing their custody suites. Lessons learned, best practice
and details of new policy are promulgated to them and they have the responsibility for cascading
this information to custody staV.
Work is also ongoing into developing an intranet site containing useful information and best practices
which all MPS staV can access.

Custody-nursing pilot
In addition to the work of the Dept of Criminal Justice, the Metropolitan Police custody-nursing pilot
started in July 2001 at Charing Cross Police Station. The evolution of the MPS custody nurse scheme has
been incremental to ensure a safe environment for all concerned, and has received the backing of the
Association of Police Surgeons. The changes to the PACE Codes of Practice enable custody nurses to
undertake certain medical tasks that were previously the sole responsibility of the FMEs. A Psychiatric
Nurse is available to support and advise custody staV and detainees on an on-call basis between 9am–9pm.
Outside these hours the nurses and the custody oYcers rely on the duty Mental Health Social Worker.
Research conducted thus far indicates that detainees will often provide custody nurses with information
about themselves that they are reluctant to impart to custody staV, and this information is of considerable
value, both in identifying if a prisoner is ill and also if they may be pre-disposed to self-harm.
The MPA approved the scheme to be a permanent feature in October 2002. A decision to roll out the
custody nurse programme further will be taken once the nurses’ extended working practices have been
evaluated and balanced against other factors, including cost eVectiveness.

Drugs Mules
Earlier in the year, Commander Given chaired a small working group looking into the issues surrounding
“drug mules” and what action police could, and should, take when such individuals are arrested to ensure
everything possible is done to preserve of life. Expert opinion was sought from consultants and nurses who
were able to provide relevant information as to the type of medical intervention required, the circumstances
under which they could act, ie a person who has swallowed a cachet of drugs or inserted it into their body
is not regarded by the medical profession as ill, but rather as being in a particular condition. Therefore unless
the drugs get into the system no medical treatment is required.
HM Customs and Excise invariably detain drugs mules however, under PACE they have no legal
authority to charge, bail or detain prisoners after charge (this includes transporting detainees to court from
police stations). This is why their prisoners pass into police care and control. As a direct result of the
meetings a protocol was drawn up between the police and HMCE, which set out the roles and responsibilities
of both organisations. The ultimate aim of the protocol is to reduce as far as possible the amount of time
drugs mules spend in police custody, and ensure they have access to FMEs who will be able to risk assess
their condition.

Conclusion
The formal structure and multi discipline approach of the Death in Custody Group has raised the profile
of improving the safety of detainees in custody suites. There are regular clear lines of communication to CJU
Managers and on to operational oYcers working in custody suites which enables the promulgation of
relevant information in a direct and timely manner. The Group supports and influences funding necessary
to improve custody suites and install and upgrade CCTV. Issues are debated and decisions are made in a
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Ev 14 Joint Committee on Human Rights: Evidence

constructive way. The range and experience of members of the group, particularly HM Coroner and Legal
Services, ensures that issues take into account human rights, diversity legislation, health and safety and the
expectations of external colleagues and agencies.

DEATHS IN IMMIGRATION DETENTION


Since 1989 there have been five deaths of persons held in Immigration Service detention centres (now
known as removal centres). In all but one of the cases, death was self-inflicted1. Coroners’ inquest verdicts
in the cases concerned have been either suicide, death by misadventure or “open”. Central records of
incidents of self-harm are not maintained.
With such a relatively small number of deaths in immigration detention compared to the total number of
individuals likely to have been detained over the same period it is diYcult to establish statistical trends.
However, to the extent that common themes emerge in the individual cases concerned, it appears that
incidents of self-inflicted death have preceded the proposed or potential removal of the person concerned
from the UK. This is also a common theme in incidents of actual or attempted self-harm involving
immigration detainees, which for the most part appear to be designed to delay or prevent removal.
To the extent that it is possible to do so where very little may be known about the individuals concerned,
the Immigration Service will, amongst other risks or special needs, identify whether a person who is being
detained is likely to present a risk of suicide or self-harm and this information will be passed to the
detaining agency.
Under the Detention Centre Rules 2001, Detainee Custody OYcers are required to be alert to the
particular anxieties to which detainees may be subject and the sensitivity that this will require, especially
when handling issues of cultural diversity. Within removal centres there are a range of measures in place to
prevent suicide and self-harm, and all centres are required to comply with an Operating Standard on suicide
and self-harm prevention. Specific measures include:
— all staV receive suicide awareness training, refreshed annually;
— display of notices to detainees and visitors in relevant languages about informing staV where they
have concerns about a detainee;
— Suicide Prevention Committees which meet monthly and involve detainees;
— all staV receive training in emergency first aid; and
— systems for paying particular attention to detainees on their first night in detention and in cases
where removal directions are known to the detainee or immediately prior to removal.
The death of an immigration detainee would be subject to a number of separate investigations. The centre
operator would carry out an internal investigation and the Immigration Service would conduct its own
investigation.
In all cases, the police would be called in to investigate the incident and there would, of course, be a
Coroner’s inquest.
18 September 2003

2. Memorandum from the Department of Health

A Detention Under the Mental Health Act 1983


It may be helpful to consider this aspect of the inquiry under three headings, each relating to a diVerent
set of circumstances.
(a) Death by suicide and untoward incidents including homicide (Section A);
(b) Accidental death following the use of control and restraint (Section B); and
(c) Death by natural causes where neglect or an action by an agent of the institution may have
contributed.
Although there may be general and crosscutting issues to consider (such as the availability of means to
commit suicide and the general availability of treatments for severe mental illness), every death merits an
analysis of the individual circumstances. In many cases it is the combination of factors rather than a single
cause that needs to be understood.

1 The single exception is the apparent murder in May 2003 of a female detainee by her partner. The cause remains under
investigation by the police.
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Joint Committee on Human Rights: Evidence Ev 15

A “human rights approach” to the management of settings can, and has been, helpful in preventing and
investigating deaths in custody or deaths amongst those who are detained in a variety of settings. Section
C contains examples from high secure hospital settings. Sections D and E contain information about the
work of the Mental Health Act Commission (MHAC) and the causes or detention under the Mental Health
Act respectively. Section F explains what is being done to reform the inquiry process.
While the focus of the inquiry is on the settings in which people may be detained, it is also important to
remember that it is possible for patients detained under the Mental Health Act to have home leave. This can
be a time of high risk for them (see Sections A and D). This means that a focus on the whole system of care,
including care planning and follow up, is as important as the care setting. Furthermore, this will become
more important if the proposed reforms to the current law contained in the Mental Health Bill are
implemented.

Section A: Suicide by People with a Mental Illness


Suicide accounts for 2% of all male and 1% of all female deaths and is associated with nearly half a million
years of life lost for those under 75. It is now the leading cause of death for young men under the age of 25.
Having a severe mental illness is a risk factor; for example, around a quarter of people who commit suicide
have a severe mental illness and their lifetime risk is 10–15%.
Three-year (rolling) averages are the usual way to record suicide and the latest figures for the three-year
period 1997–2000 show a small rise (4.1%). Data for 1998–99–2000 (three-year average) show a rate of 9.4.
deaths per 100,000 population—a rise of 4.1% over baseline (1995–97). However, although suicide rates
fluctuate year on year, they show an overall downward trend since the early 80s. The suicide rate for the
year 2001, the most recent available, was the lowest recorded (8.9 per 100,000). This is encouraging and if
the rate remains low next year, the three-year average rate will fall.
The likelihood of a person committing suicide depends on several factors. These include physically
disabling or painful illnesses and mental illness; alcohol and drug misuse; and level of social support.
Stressful life events such as the loss of a job, a death or divorce can also play a part. For many people, it is
the combination of factors which is important, rather than any single factor. Because a significant number
of suicides occur during a period of inpatient care, of shortly after discharge, managing risk eVectively and
ensuring good continuity of mental health care is essential.

In-patient suicides
Following the Chief Medical OYcer’s report “An Organisation with a Memory”, the Department of
Health issued a directive that required all local mental health services to reduce to zero the number of
suicides on acute psychiatric wards by ensuring that immediate action was taken to remove all non-
collapsible structures such as bed, shower and curtain rails in all psychiatric in-patient settings. All Trusts
have since complied. The chart below illustrates the fall in in-patient suicide in 2001.

In-patient suicides
250

200

150

100

50

1997 1998 1999 2000 2001


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Ev 16 Joint Committee on Human Rights: Evidence

Policy Background

National Service Framework for Mental Health (NSF) September 1999


The Government’s White Paper Saving Lives: Our Healthier Nation sets out a challenging target to reduce
the rate of death by suicide and undetermined injury by one fifth by the year 2010.
Standard Seven of the Department of Health’s National Service Framework for Mental Health (NSF)
(1999) sets out the action needed to achieve this. In addition, it sets out the action to be taken to support
prisons in preventing suicides among prisoners by ensuring that staV are competent to assess the risk of
suicide among individuals at greatest risk; and develop local systems for suicide audit to learn lessons and
take any necessary action.
Services were asked to:
— review the physical environment in in-patient settings and make changes necessary to reduce access
to means of suicide;
— help prevent suicides amongst high risk groups, ie all patients with a current or recent history of
severe mental illness and/or deliberate self harm, and, in particular, those who at some time during
their admission were detained under the Mental Health Act because of high risk of suicide. They
must be followed up (by a face to face contact with a mental health professional) within seven days
of discharge from in-patient hospital care; and
— develop local systems for suicide audit to learn lessons and take any necessary action.

National Suicide Prevention Strategy for England


On 16 September 2002, the Department of Health published the National Suicide Prevention Strategy for
England, the first of its kind in this country. It was developed under the direction of the National Director
for Mental Health, Professor Louis Appleby, to ensure that we are doing all we can to prevent suicide in
pursuit of the Saving Lives: Our Healthier Nation target. The strategy is a co-ordinated set of activities that
will take place over several years and which will evolve as new priorities and new evidence on prevention
emerge. It provides comprehensive, evidence-based guidance on the action needed to reduce risk; reduce the
availability and lethality of means; and promote mental health.
Implementation of the strategy is one of the core programmes of work of the National Institute for Mental
Health in England (NIMHE). It will involve close working with a range of health and social care agencies,
other Government Departments and voluntary sector organisations. NIMHE is also developing a toolkit to
support the implementation of Standard Seven of the National Service Framework for adult Mental Health
(suicide prevention). This is planned for publication in autumn 2003 and will include an audit tool and
examples of good practice.

The National Confidential Inquiry into Suicide and Homicide by People with Mental Illness
The Department of Health funds the National Confidential Inquiry into Suicide and Homicide by People
with Mental Illness to ensure that everyone involved in mental health services learns and implements lessons
from the factors associated with serious incidents. The inquiry is crucial to gaining a better understanding
of the circumstances surrounding homicides and suicides committed by people with mental illness. The
inquiry’s fifth report “Safety First”, which was published March 2001, says that of 1,579 homicides notified
to the inquiry:
— Around a third had a diagnosis of mental disorder, the most common being alcohol dependence,
drug dependence and personality disorder (9%).
— Only 15% (of the whole sample) had symptoms at the time of the oVence.
— Only 5% had a diagnosis of schizophrenia.
— Most were male (ratio of nine men to one woman) and most were young (median age 27).
The report recommended “Twelve points to a safer service” covering the most important policy and
practice issues. These are intended as a checklist for local services where service development is supported
through the NIMHE programme.

Section B: Management of Violence and Use of Restraint in Mental Health Settings

Work in Progress
Owing to concerns about safety in mental health settings expressed by users, carers and staV, a Cross-
Government Group on the Management of Violence was set up and had its first meeting in October 2002.
A number of progressive services already have policies and protocols in place but there is a need to share
and disseminate positive practice. The Cross-Government Group will therefore develop guidance to help
local agencies collaborate; promote and develop strategies on the management of violence, and support the
development of policy between agencies on information sharing, referrals, custody procedures and training.
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NIMHE will appoint a project manager for two years from 2003–04 to work in partnership with the
National Patient Safety Agency. The post holder will develop a proposal for accreditation of training and
trainers; design and commission appropriate training; update the Mental Health Code of Practice, and
convert current guidance into standards and audit. Mr Gary O’Hare has been appointed on an interim basis
from 1 September 2003.
The National Institute for Clinical Excellence (NICE) has been commissioned to develop guidance on the
short-term management of disturbed (violent) service users in adult inpatient psychiatric settings. This
should be available in August 2004.
The Department of Health has funded the British Institute of Learning Disabilities (BILD) to establish
a system of accreditation for trainers and programmes in the learning disability speciality.
The Department of Health (DH) and the Department of Education and Skills have issued guidance for
Restrictive Physical Interventions for people with learning disabilities and Autistic spectrum disorder.
The National Assembly for Wales has drafted “Overarching principles and expectations to inform
restrictive physical intervention policy and practice when managing challenging behaviour for health, social
services and education settings”, which will be issued in early 2004.

Work to be Developed
The Department of Health has developed a Zero Tolerance campaign, which does not always fit with the
philosophies of Mental Health Services and needs of service users. There is a requirement to interpret and
adapt for mental health settings.
The Home OYce is working on principles for liaison between police and local mental health services into
which DH oYcials will provide a health perspective.
The National Patient Safety Agency has expressed an interest in taking forward an investigation of the
use of restraint.

Background
In February 2002 the United Kingdom Central Council for Nursing, Midwifery, and Health Visiting
(UKCC) issued a report into the therapeutic management of violence in mental health care. It made a
number of recommendations which included the need for appropriate training; the need to consider the
issues of race, culture and ethnicity; and standards relating to skills in physical interventions and physical
care. It also recommended that:
— Policies and principles should be developed on controversial issues, such as the use of CS Spray,
the institution of criminal proceedings against patients, mechanical restraints, pain compliance
and other legal, ethical and human rights issues.
— Research should be commissioned into the safety, eVectiveness and professional acceptability of
de-escalation techniques, seclusion and physical interventions.
Following the death of David Bennett, the then Minister of State at the Department of Health (Jacqui
Smith) gave a commitment to Dr Joanna Bennett to write to her ministerial colleagues for their support in
delivering a more consistent cross-Government approach on restraint. This was also stated in the
adjournment debate of 9 November 2001. The most recent meeting of the Cross-Government Group was
held in July 2003.
Concerns about safety expressed by users, carers and service staV. There is evidence of concern from
services in respect of Health and Safety imperatives, injuries to patients and staV, European Human Rights
legislation, ethical issues, the increasing use of substance misuse, presence of weapons and the need for
searching. A number of progressive services have policies and protocols but there is a need to share and
disseminate positive practice.
MHAC—The reform of the Mental Health Act and the revision of the Mental Health Act Code of
Practice, taking account of modern approaches to mental health care, more enlightened approaches to
prevention and management of disturbed behaviour and the need for close collaboration and co-operation
between the Police and other agencies to reduce risk.

Section C: High Security Hospitals

Human rights awareness


The high security hospitals provide the most secure settings available within the NHS and accommodate
the most potentially dangerous mentally disordered patients. This means that robust security arrangements
need to be put in place. However, there is a need to strike the right balance between considerations of security
and therapy. The general principle is that good security should provide a safe environment for patients and
staV in which therapeutic activities can flourish.
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Ev 18 Joint Committee on Human Rights: Evidence

Human rights issues are very much to the forefront of thinking about policy and procedures in the high
secure hospitals. For example, the Fallon Inquiry into Ashworth Hospital identified shortcomings and
inconsistencies in the security arrangements at Ashworth Hospital. As a result the high security hospital
Safety and Security Directions were drawn up to bring robust and consistent security arrangements across
the three high security hospitals sites.
These Directions were scrutinised carefully for compliance with human rights legislation and, in view of
the Department of Health, struck the right balance between human rights considerations and legitimate
security concerns. Nevertheless, some patients and staV feel that the pendulum has swung too far towards
security. Consequently, there have been a number of human rights related challenges/threatened challenges
to the Directions, none of which have so far been taken successfully through the courts.
Amongst the security and human rights considerations it is important to bear in mind in relation to the
high secure hospitals:
— The Mental Health Act 1983 Code of Practice has been complied with human rights issues in mind.
For example, the first guiding principle on page three of the Code states that people to whom the
1983 Act applies should receive recognition of their basic human rights under the European
Convention on Human Rights.
— In paragraph one on page one of the Code it is stated that the Act does not impose a legal duty to
comply with the Code but it is a statutory document and failure to follow it could be referred to
in evidence in legal proceedings. The Code has a high profile and a high status; and routine
monitoring is undertaken by the Mental Health Act Commission.
Examples of issues challenged include:
— The arrangements for listening into/recording some patient telephone calls.
— The restrictions on visitors bringing food and tobacco into the hospitals for patients.
— The arrangements for searching patients and visitors.
— The control on the volume of possessions that patients may keep in their rooms.
Other human rights related challenges include:
— Against the seclusion policy at Ashworth Hospital (on the grounds that it did not fully comply
with the Code of Practice).
— Patients being treated for a disorder that they were not classified for under the Act (eg a patient
legally classified as mentally ill being treated for a personality disorder). Both these challenges were
successful but may be appealed.

Deaths in untoward circumstances


Action taken by high security hospitals to prevent deaths in untoward circumstances:
— All deaths in untoward circumstances are investigated with a view to learning lessons for the
future.
— Observation levels are increased for patients who are thought to be at risk of self-harm/suicide.
— There are robust commissioning and performance management arrangements in place, one of the
objectives of which is to improve the treatments and activities available to patients and thus
improve their quality of life and hopefully reduce the danger of self-harm/suicide.
— Central funding has been provided to aid the removal of ligature points. EVorts have also been
made to make seclusion rooms safer.
— Life saving equipment is available (eg defibrillators are available to all wards and staV are trained
to use them).
Other action that may serve to reduce self-harming and suicidal intent:
— There have been delays in moving patients out of the high security hospitals. This may, for some
patients, have increased any suicidal tendencies. The Department of Health has initiated an
accelerated discharge programme (NHS Plan Commitment) to reduce the problem of delays in
moving patients out of the high security hospitals. This is linked to the wider development of secure
psychiatric services to facilitate the movement of patients to whatever is the most appropriate level
of security at any given moment in time.
— The number of women patients in high security is being significantly reduced through the
accelerated discharge programme such that only one site, rather than all three, will need to provide
such a service. Alternative, more appropriate, services are being developed for women who do not
require high security.
— The high security hospitals have become less isolated by virtue of their integration into NHS
Trusts. This has improved links with the wider NHS easing staV exchange, etc. As a result the high
security hospitals are developing more of an NHS ethos.
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— There have been some reductions in ward sizes (patient numbers). There are plans for further
reductions but they depend on funding being made available.
— General health care advice to patients is improving, although there is still room for improvement.

Section D: Mental Health Act Commission (MHAC)

The MHAC is a special health authority with responsibility for monitoring and reviewing MHA
implementation as it relates to patients who are detained or liable to be detained under the Act in England
and Wales. The MHAC publishes a report every second year on its rolling programme of visits to all
hospitals and nursing homes, and its findings based on reviews of patient records, examination of policies
and systems, and meetings with detained patients. The report for 1999–2001 was laid before Parliament in
2002. Although it is not possible to address all the recommendations, a sample of important issues arising
from the report are highlighted below.

Information
Chapter 2 concerns patients’ rights. The report comments that, where patients do not understand their
legal position, it is often as a result of poor practice in providing communication at an appropriate level and
checking that it has been understood. Although there is no evidence that poor or inadequate information
has led to or contributed to deaths, it is likely to be important in adding to a sense of isolation amongst those
with severe mental illness and/or depression who are at risk.
The MHAC recommended action to reduce the stigma of mental illness (being taken forward by the
NIMHE) and to ensure patient information is adequate in an appropriate range of languages and formats.
NIMHE’s programmes on the mental health of black and minority ethnic communities and strategy for
people with mental illness who are deaf are both relevant here.

Deaths of Detained Patients

The MHAC maintains a record of every patient who has died whilst subject to detention under the MHA
and inquires as to the circumstances. Its most recent report considers the deaths of 1,471 patients over a
three year period, of whom hospital staV reported that 1,218 died of natural causes (an estimated rate of
822/100,000 sections per annum for 1997–2000). The most significant finding is that 47% of such patients
died within one month of admission and 18% between one month and 10 weeks.
Two hundred and fifty three (17%) of the 1,471 cases resulted in an inquest. Of these, 168 verdicts were
recorded as suicide or “open” verdicts, 31 as accident or misadventure, four due to drug abuse and five as
natural causes. Only 2% of the unnatural deaths were among people over the age of 75. The majority (78%)
were under the age of 45 years and most (72%) were men. Almost half of those who died an unnatural death
were diagnosed as having schizophrenia and 20% were diagnosed as having depression. Hanging was
reported to be the cause of death in 40% of suicides and 16% of deaths by accident or misadventure—
pointing to the importance of removing ligature points.
Analysis of the cases reported as suicide (or open verdicts thus classified) indicates that younger people
detained because of a mental disorder are more at risk than older people. 25% (41) of suicides occurred whilst
the patient was being observed every 15 minutes—which emphasises the importance of reviewing
observation procedures. This is a point also made in the 1999 Report of the National Confidential Inquiry.
Only 32% of unnatural deaths occurred within a psychiatric unit, and the remainder occurred whilst the
patient was on leave. This finding is consistent with the findings of previous reports and reinforces the
importance of risk assessment and management, security and policy on granting leave under Section 17 of
the Act, particularly if a patient fails to return at the expected time. Thirty one (12.5%) of deaths were
categorised as accidental (18 men and 13 women, most under the age of 45) and almost a third of these were
in psychiatric wards.
Among the deaths reported to a coroner, the MHAC information showed 22 instances in which restraint
had been used in the week before death and two of these concerned patients from African or Caribbean
ethnic cultural groups. Although the small numbers make it diYcult to assess statistical significance, the
MHAC recommended attention to this, especially as there is a relatively high number of people from black
and minority ethnic groups who are detained under the MHA.
The MHAC makes a series of recommendations concerning their findings on risk assessment, data
capture (including about ethnicity), the use of restraint, analysis of deaths by hanging, removal of means to
assist suicide, and audit and inquiry after a death by suicide.
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Section E: Mental Health Act (1983) Detention


This Annex contains an extremely brief overview of the provisions of the Mental Health Act 1983.
The MHA governs all aspects of compulsory admission to hospital, as well as the treatment, welfare, and
aftercare of patients. It provides for mentally disordered persons who need to be detained in the interests of
their own health, their own safety or the safety of others. The Act sets out when and how a person can be
“sectioned” and ensures that the rights of detained patients are protected.
The Act sets out the rights of people who are detained to have information about the reasons for the
detention; an explanation of the relevant section; information about the right to appeal to the Mental Health
Review Tribunal; information about care and treatment; information about social security benefits;
information about how to complain; and about plans for discharge.
Section 1 of the Act defines mental disorder in terms of mental illness, mental impairment, severe mental
impairment, or psychopathic disorder. Mental impairment means a state of arrested or incomplete
development of mind, including significant impairment of intelligence and social functioning which is
associated with abnormally aggressive or seriously irresponsible conduct. Psychopathic disorder means a
persistent disorder or disability of mind resulting in abnormally aggressive or seriously irresponsible
conduct.
An individual with a mental disorder may be compulsorily admitted to hospital where this is necessary:
— in the interests of his or her own health, or
— in the interest of his/her own safety, or
— for the protection of other people.
Only one of these grounds needs to be satisfied in addition to those relating to the patient’s mental
disorder.
Section 2 concerns admission for assessment or admission for assessment followed by treatment for up
to 28 days. Section 3 concerns compulsory detention for treatment up to six months. Section 4 concerns
admission in an emergency and section 5 is for emergencies amongst those already in hospital. The Act also
covers circumstances for people subject to criminal proceedings (sections 37, 37/41, 47 and 48). Section 2
and 3 treatment orders may not be applied unless treatment could not be delivered without them. Treatment
can be delivered without consent in those circumstances for up to three months.
The Responsible Medical OYcer (RMO) can agree to specified periods of leave, possibly with conditions
attached, although some sections are restricted and the Home OYce must be informed.

Reform of the 1983 Act


A draft Mental Health Bill and Consultation document was published for consultation between 25 June
and 16 September 2002.
Mental health legislation sets out the circumstances in which people can be treated for mental disorder
without their consent and the safeguards to which they are entitled.
The Bill will replace the current Mental Health Act 1983 and is the first major overhaul of the system since
the 1950s. The objectives are:
— to make significant improvements to patients’ safeguards;
— to provide a modern framework of legislation in line with modern patterns of care and treatment
and human rights law; and
— to protect public safety by enabling patients to get the right treatment at the right time.
The Bill forms a vital part of the Government’s wider strategy to improve and modernise mental health
services for all. This includes increased investment and current reform of services.
The vast majority of people with mental health problems are not a risk to anyone and will never need
compulsory treatment. However, there is a small number of patients who need compulsory treatment,
mainly for their own safety, and on very rare occasions for the safety of others. The Bill aims to ensure that
these seriously ill people receive the treatment they need.
It will break the automatic link between compulsory treatment and detention, allowing patients to be
treated in the setting most appropriate to them. Treatment in the community will provide a positive
alternative for the many patients who do not want or need to be detained in hospital and an opportunity to
minimise the disruption to their lives.
It will introduce new rights and safeguards for patients, including:
— A requirement for every patient to have an individual written care plan.
— All compulsion beyond 28 days to be authorised independently by the new mental health tribunal.
— Access to new specialist mental health advocates to support patients and their nominated person.
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The combination of the new definition of mental disorder and the tight set of conditions for compulsion
can ensure that all patients, whatever their diagnosis, will be considered on the basis of their individual
needs.
The Bill aims to strike the right balance between safeguarding the rights of individual patients and
protecting patients from harming themselves or others.
The Department of Health received nearly 2,000 responses to the consultation exercise. It is now
completing and refining the Bill in the light of those responses to ensure it achieves the intended eVect. A
new Mental Health Bill will be introduced as soon as Parliamentary time allows.

Section F: Reform of the Inquiries Process


The then Minister of State for Health (Jacqui Smith) announced in 2002 that the Government intended
to reform and strengthen the process of inquiries following homicide by a person with a mental illness. The
National Patient Safety Agency (NPSA) is road testing “Root Cause Analysis”, the approach outlined in
the Chief Medical OYcer’s report “Building a Safer NHS for Patients” published in 2001.

Background
“Safety First”, the fifth report of the National Confidential Inquiry into suicide and homicide by people
with mental illness, was published March 2001. The report says that, of 1,579 homicides notified to the
inquiry:
— Around a third had a diagnosis of mental disorder, the most common diagnoses being alcohol
dependence, drug dependence and personality disorder (9%).
— Only 15% (of the whole sample) had symptoms at the time of the oVence.
— Only 5% had a diagnosis of schizophrenia.
— Most were male (ratio of nine men to one woman) and most were young (median age 27).
The key issues in the guidance issued by the Department of Health, HSG (94) 27, are that:
— In the event of a homicide committed by a person in contact with specialist mental health services
an inquiry into the treatment and care provided should be commissioned and this inquiry should
be independent of the providers of care.
— Responsibility for commissioning such inquiries was recently transferred from the former health
authorities to the strategic health authorities. This makes the most sense in view of Primary Care
Trusts’ increasing involvement in service provision.
— The National Patient Safety Agency, part of the Modernisation Agency, is currently road-testing
the “root cause analysis” approach for homicides committed by a person in contact with specialist
mental health services.
— A number of external stakeholders, such as the Royal College of Psychiatrists are actively involved
in the process of advising on reform. For example, Jayne Zito has a particular interest following
her work to strengthen systems of care and investigations of incidents after the death of her fiancé
at the hand of Christopher Clunis.

B Deaths in Prison Custody

How does the prison healthcare system seek to prevent deaths in prisons, in particular through mental healthcare
and drug detoxification programmes?
The Prison Service’s published objective is to provide prisoners with access to the same range and quality
of health services as the general public receives from the National Health Service (NHS). In pursuing
achievement of this objective, it seeks to go considerably further than just meeting the obligations in Articles
2, 3, and 8 of the European Convention on Human Rights (ECHR).
Amongst key epidemiological factors which influence views on suicide and self-harm in prison and their
prevalence, prevention, assessment and management are the following:
— Prisoners are known to be most vulnerable to suicide during their first day, first week and first
month in custody, and during similar periods of time following their transfer to a diVerent prison.
— It is well known that 90% of prisoners have at least one significant mental health problem
(Psychiatric Morbidity amongst prisoners in England and Wales OYce for National Statistics
1998). One fifth have four out of five of the major categories of mental health disorders considered
in the ONS survey (psychosis, neurotic disorder, personality disorder, drug dependence and
alcohol misuse).
— The National Confidential Inquiry report in to the Suicides in Prison (1999–2000) found that 72%
of those who died had at least one psychiatric diagnosis recognised on their reception into prison.
This was at a time when the Prison Service was poor at identifying mental ill health during the
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Ev 22 Joint Committee on Human Rights: Evidence

reception screening process so it is possible that an even higher number of those who died had a
mental disorder. The commonest mental disorder identified was drug dependence. Sixty two per
cent of those who died had a history of drug misuse and 30% of alcohol misuse; only half of whom
had been referred to the prison healthcare service.
— Ninety two per cent of self-inflicted deaths in prison are the result of hanging; very importantly the
commonest ligature being bedclothes. Twenty five per cent of those who died had open 2052SHs,
indicating the recognition of risk but 75% did not. This is no worse than for suicides in the
community, where only 2% of people who died had been recognised as being at high risk.
These facts about the epidemiology of suicide and self-harm in prison have informed management policies
in a number of ways.

Reception Arrangements
Research indicated that the Prison Service’s reception screening processes were failing to identify up to
three-quarters of the prisoners who had a severe mental illness. To rectify this, new triage-based reception
screening arrangements were developed and piloted during 2001–02 at 10 local prisons. They focus on
identifying and managing a prisoner’s immediate and significant health needs on first reception into prison
custody, so that more eVective use can be made of existing staV resources and skill mix. This work has been
closely linked to development of the Prison Service’s suicide prevention strategy and four of the reception
screening pilots also form part of the Prison Service’s Safer Locals Programme. Evaluation of experience at
the pilot sites showed a substantial improvement in the identification of prisoners with a severe mental
illness. The new reception health screening system is being phased in at all local prisons over a 12-month
period that began last April.
Significantly, evaluation of the new reception screening tool at the pilot prisons revealed that only 3% of
receptions, when asked, stated that they were suicidal. Only two individuals in this group had no mental
disorders. All the others were identified through the reception screening tool as having either a significant
mental illness or an addiction to alcohol and/or drugs, or both.

The Clinical Management of Substance Misusers Including Detoxification


The Prison Service expects good quality clinical substance misuse services, including detoxification, to be
available in all local prisons and remand centres. Its Standard for Health Services to Prisoners requires all
establishments to have in place a written and observed statement of their substance misuse service which
must be in line with the latest Department of Health guidance on drug misuse and dependence (1999).
The general health examination/assessment a prisoner receives on first reception into custody aims to
identify past and present drug usage and engagement with community drugs teams. A clinical decision is
then reached about the next steps in the management of each individual prisoner. This can be either
detoxification of substitute prescribing, as a prelude to a broader based drug treatment programme.
Prison Service Order (3550), (December 2000) introduced a new Standard for Clinical Services for
Substance Misusers, which concerns the eVective clinical management of the substance misuse treatment
service provided by staV working in prisons. It is in line with current Department of Health guidelines for
such a service, forms part of the overall Prison Service Drug Strategy, and underpins delivery of the Prison
Service Standards of Health Services for Prisoners and Drugs. It was designed to ensure, once fully
implemented, that good quality clinical substance misuse services are available in all local prisons and
remand centres to a level that is at least comparable with those in the community.
The Standard requires all establishments to have in place a written and observed policy statement on their
substance misuse service. All prisoners must have immediate access to detoxification programmes for
opiates, alcohol and benzodiazepines in line with Department of Health guidelines (1999). They must be
provided with information about substance misuse treatment services, health promotion and harm
minimisation.
The Standard also requires establishments to have evidence-based guidelines for maintenance
prescription which are also in line with the current Department of Health guidance. Is specifically indicates
that maintenance prescribing is likely to be suitable for prisoners on remand or serving short sentences who
have been maintained on methadone in the community and for whom there is evidence that engagement in
such a programme has had a beneficial eVect. Such programmes are also indicated for pregnant women and
people with serious physical illnesses.
Guidelines should include information about maintenance on naltrexone and its use in relapse prevention
management.
The Standard goes on to say that, as new evidence becomes available on the chemical management of
detoxification or abstinence, establishments should develop further treatment guidelines which are in line
with those available in the National Health Service.
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Joint Committee on Human Rights: Evidence Ev 23

The National Treatment Agency (NTA) has undertaken a considerable amount of work in conjunction
with the Department of Health on the prevention of drug-related deaths. Prison Health and the Prison
Service’s Drug Strategy Unit are both members of the NTA’s drug-related deaths working party, thereby
ensuring that its work is relevant to prisoners and the prison setting. A significant amount of harm
minimisation material has been developed for treatment providers, service commissioners, general health
providers, drug users, and marginalised groups, which, when published, will also be available and applicable
to prisoners and prison staV.

Mental Health Services


Despite the best eVorts of the Prison Service, the majority of deaths occur in people who have not been
recognised as being vulnerable to suicide at that time. It is known that death is most likely to occur during
the first month in custody, for the person to have a mental health problem, most likely a drug problem. This
confirms the importance of continuing with the current approach, which is to assess and manage those
prisoners whom staV identify as vulnerable through self-report or emotional distress. It also highlights the
importance of treating all prisoners decently and humanely at all stages of their time in prison custody and
of continuing to improve the assessment and management of prisoners with mental disorders and/or
dependence on drugs and alcohol.
The work that is currently underway to improve mental health services in prisons should be seen in the
context of the government’s overall strategy for improving prison health care generally, and is being taken
forward within that framework. Concern about the quality of health services available to prisoners increased
during the early and mid-1990s. The Home Secretary and the Secretary of State for Health jointly set up a
Working Group of oYcials from the Prison Service and the NHS Executive to consider the future
organisation of, and ways of improving, prisoners’ health care. The strategy that is now being implemented
stems from the findings and recommendations of that Working Group, as set out in its Report “The Future
Organisation of Prison Health Care” (1999). The basic principles were succinctly summarised as follows:
“Healthcare in prisons should promote the health of prisoners; identify prisoners with health
problems; assess their needs and deliver treatment or refer to other specialist services as
appropriate. It should also continue any care started in the community contributing to a seamless
service and facilitating through care on release”.
One of the source documents used by the Working Group was an earlier Report of the Independent
Standing Health Advisory Committee for the Prison Service, “The Provision of Mental Health Care in
Prisons” (1997). That report stressed the importance of “equivalence”, that is, that the mental health services
available to prisoners should be of the same type and range, and of the same quality, as those available to
NHS patients in the community. The Joint Working Group accepted this principle, both in terms of mental
health services and of prison health care generally, and it formed the starting point of all their
recommendations, and of the prison health care strategy developed subsequently.
The prison population is now around 74,000, and over 140,000 are received into custody each year, most
only staying for a short time before being released back into the wider community. It has been estimated
that around 90% of prisoners can be diagnosed as suVering from at least one of the five main categories of
mental disorder (psychosis; neurosis; personality disorder; alcohol misuse; drug dependency). Around 20%
of those on remand and 12–15% of those serving sentences suVer from four out of the five. On any one day
in prisons in England and Wales there will be around 5,000 prisoners with a severe and enduring mental
disorder.
The Department of Health’s NHS Plan (July 2000) included the following specific commitments on the
provision of mental health services for prisoners:
“Within the new partnerships between the NHS and local prisons, some 300 additional staV will
be employed.
By 2004, 5,000 prisoners at any time should be receiving more comprehensive mental health
services in prison. All people with severe mental illness will be in receipt of treatment, and no
prisoner with serious mental illness will leave prison without a care plan and a care co-ordinator.”
The government’s strategy for developing and modernising mental health services in prisons, Changing
the Outlook, a Strategy for Developing and Modernising Mental Health Services in Prisons was published in
December 2001. It set out a vision of where prison mental health care was expected to be in three to five
years time and identified the steps that would have to be taken if it were to be realised.
Referring specifically to suicide prevention, paragraph 3.24 of Changing the Outlook stated:
“Nine per cent of all suicides in prison occurred during the first 24 hours in custody, 27% during the
first week, and 43% during the first month. The Director General of the Prison Service has made it
clear that he considers suicide prevention to be one of the key objectives of the Prison Service. The
mental health NSF gives it the same emphasis by including it as one of the seven standards and by
identifying prisoners as one of the key vulnerable groups within the standard which the NHS
should be specifically targeting. Thus both the Prison Service and the NHS have been given a clear
responsibility to work together in this field. The Prison Service has recently launched a new
strategy for suicide prevention, and piloting has begun in five prisons. On the NHS side, the first
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Ev 24 Joint Committee on Human Rights: Evidence

wave sites for mental health in-reach deliberately include those five establishments, in
acknowledgement of the vital links between mental ill health and suicide. However, providing
eVective care and treatment for suicidal prisoners will be a key task for all prisons, not just those
involved in these initiatives.”
The basic principle underpinning the prison mental health strategy is that services should be provided, as
far as possible, in the same way as they are in the wider community. Prisoners who, were they not in prison,
would be treated in their own homes under the care of Community Mental Health Teams (CMHTs), should
be treated on the wings, their prison “home”. Those needing more specialist care should be able to receive
it in the prison Health Care Centre, and there should be quick and eVective mechanisms to transfer those
requiring specialist in-patient treatment to hospital. Any prisoners already receiving treatment for mental
health problems in the community through, for example, the Care Programme Approach, should continue
to have access to that level of service while they are in prison and, if appropriate, on release.
The prison mental health in-reach project, which began in 2001, is the mechanism through which the
specific commitments in the NHS Plan are being implemented. Dedicated funding has been made available
from the NHS budget to support the introduction into prisons of multi-disciplinary teams which are
designed to provide mental health services for prisoners along the lines of the community mental health
teams which already provide mental health services in the community at large. The project began at 18
establishments in England and the four in Wales in 2001–02, and was extended to another 26 sites during
2002–03. During this financial year in-reach teams are being developed in another 46 establishments. So far
more than 150 additional NHS staV have become involved in providing mental health services in prisons.
That number will double by the end of 2003–04, as the target in the NHS Plan is met. Between March 2004
and March 2006 it is expected that NHS mental health in-reach investment will double. This should mean
that within the next three years there will be in-reach type services available to every prison in England and
Wales. The extra investment will also support many of the existing teams in expanding the services they
can oVer.
Changing the Outlook signalled the intention to establish a prison mental health collaborative to support
and empower staV to modernise clinical services for prisoners with mental health problems. This
collaborative is now well underway, in partnership with the National Institute of Mental Health and the
NHS Modernisation Agency. It involves training and empowering groups of clinical staV to make
improvements in clinical practice. Amongst its objectives are the establishment of an infrastructure to
identify and share good practice and the identification of the training requirements needed for modernising
clinical services. It is also concerned with empowering staV to make decisions about their own services and
to realise small areas of change and it aims to be a means of bringing about better peer group support and
improved satisfaction for service users.
Prison Health has funded an evaluation of in-reach that is being commissioned through the NHS Forensic
Research and Development Programme. It has also established a transition group to oversee the transfer
of responsibility for prison mental health policy development and implementation to the National Institute
of Mental Health in England (NIMHE). It will assist the Prison Service’s Safer Custody Group to establish
links with NIMHE.
There is, however, more to the mental health strategy than the in-reach project. Prisons already spend
anything up to half their total health care expenditure on mental health care. Every prison is expected to
look critically with its NHS partner at its existing provision to establish whether it meets the needs identified
in the Health Needs Assessment and is in line with the principles and standards set out in both the Mental
Health NSF and Changing the Outlook. In many cases a very medicalised model was in place which took
little account of recent developments in mental health care and did not allow for modern multi-disciplinary
approaches. The strategy will mean a period of major change for virtually every establishment. It must be
recognised also, that change will not happen overnight but will be an evolutionary process over several years.
Some establishments will be able to progress faster than others.

Transfer to Hospital
Prisoners who need in-patient treatment for their mental disorders should be transferred to hospital as
soon as possible. Generally speaking, the arrangements for assessments and transfer in such circumstances
work smoothly and very many prisoners get transferred to hospital quickly. But problems of apparently
excessive delay can still occur in some individual cases. This can give rise to distress in the prisoners
themselves, their families and friends and also the prison staV responsible for looking after them while they
wait for a hospital place. Prison Health and NHS Regional Commissioners of Forensic Mental Health
Services have looked at ways to reduce the time prisoners may have to wait for a hospital place. In parallel
tighter regular monitoring has been introduced to identify prisoners who have been waiting unacceptably
long periods for transfer to hospital. All establishments must provide regular returns to the headquarters
Prison Health team showing how many prisoners are awaiting either assessment or transfer, and of the
latter, how many have been waiting for more than three months following acceptance. A protocol has been
issued which sets out the actions required of both the Prison Service and the NHS when a prisoner reaches
that three-month deadline.
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Joint Committee on Human Rights: Evidence Ev 25

Information Sharing

The importance of information sharing in assisting to prevent self-inflicted deaths is well recognised.
Prison Service Instruction 25/2002. “The Protection and Use of Confidential Health Information in Prisons
and Inter-Agency Information Sharing” and its associated Information and Practice note were issued in
May 2002. They require prisons, generally with the prisoner’s consent, to request any information required
from a prisoner’s GP or other relevant service with which he/she has recently been in contact. They also
provide guidance on information sharing with other agencies, particularly the NHS, and provide a
framework for developing eVective inter-agency information sharing, including information sharing
protocols. The issue of detailed guidance on best practice for information sharing within current legal
requirements and professional codes of conduct should increase staV confidence in sharing information in
appropriate circumstances, in particular when a patient is at risk.
Following publication of Changing the Outlook all prisons, in collaboration with their local NHS
partners, will have completed a detailed review of their mental health needs and developed action plans to
fill any gaps in service provision they identified. The challenge to all concerned if the desired degree of
improvement in prison mental health services is to be achieved is considerable. Nevertheless we expect over
the next three years or so to see all, or at least most, of the following outcomes:
— Fewer mentally disordered prisoners accommodated in prison health care centres, with resources
re-deployed to provide day care and wing-based support.
— A reduction in the average length of time mentally disordered prisoners spend in those prison
health care beds that remain.
— A more appropriate skill mix among those who are providing mental health services in the
prison setting.
— Quicker and more eVective arrangements for transferring the most seriously ill prisoners to
appropriate NHS facilities and receiving them back.
— Closer collaboration with NHS staV in the management of prisoners who are seriously mentally
ill, including those who may be vulnerable to suicide or self-harm while they are in prison.

Are any further measures being considered to address the problem of deaths in custody?

While there has been substantial progress in the provision of non-clinical drug services across the prison
estate, clinical services have been slower to develop. Detoxification, of a pre-set duration, remains the
solitary prescribing response to drug dependence in the majority of local prisons. However, while
detoxification may remain the preferred method of clinical management for some drug-dependent prisoners,
it is recognised that other treatment options are required to manage problems, including the growing issue
of suicide and self-harm during the period of withdrawal. The Prison Service’s review of prevention of
suicide and self-harm in prisons recommended that special attention should be paid to the safe management
of prisoners in the early stages of custody in a prison. This should include a focus on excellence of care for all
prisoners in reception, first night, induction and detoxification units. A broader range of clinical responses to
drug dependence, such as extended detoxification and maintenance programmes, can help to reduce
incidents of suicide and self-harm among those at risk, particularly prisoners with co-existent drug and
mental health problems.
To address this and other problems Prison Health has been developing a clinical management model to
cover up to the first 28 days of a prisoner’s period in custody. It has recently begun to seek observations
from a range of key agencies and professional bodies on the form and content of this proposed model.

Further Research into Suicide and Self-Harm

Prison Health is continuing to fund “The Confidential Inquiry into Prison Suicide”, a three-year study
being undertaken by University of Manchester. An Interim report is due to be delivered this Autumn. In
addition “cases” will be analysed against controls, ie prisoners who did not die. Such a study helps to get
closer to the precipitating factors for death. For example, rather than saying drugs are implicated in suicide
in prison we may have a clearer view that it may be heroin or cocaine only, both in combination. Prison
Health is also funding a study to ascertain the influence of supporting staV at Holloway prison who are
dealing with women prisoners who self-harm.

Are you satisfied that guidance and practice in the prison healthcare service is suYcient to comply with
obligations under Articles 8, 3, and 2 of the European Convention on Human Rights?
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Ev 26 Joint Committee on Human Rights: Evidence

What has been done to foster awareness of human rights in the prison healthcare service? Could a human rights
approach to prison healthcare contribute to the prevention of deaths in custody?
The continuing programme to achieve significant reform and improvement of the organisation and
delivery of health services to prisoners, begun in April 2000 on the basis of a new partnership between the
Prison Service and the NHS, is designed to go much further than complying with the requirements of these
Articles of the ECHR. In the written evidence he sent to Ms Roisin Pillay on 18 August, the Director General
of the Prison Service responded to these questions on behalf of the Service as a whole and his response
applies in respect of health care staV.

3. Memorandum from HM Prison Service

Introduction
1. The Prison Service welcomes the Joint Committee’s inquiry into this complex area and oVers its full
co-operation and participation. Any death in custody is a terrible tragedy that brings the Prison Service’s
duty of care to people in its custody into sharp focus. The Human Rights Act has incorporated the
provisions of the European Convention on Human Rights into UK law and the Prison Service is committed
to its terms and is determined to ensure that all those held in our custody are as safe as possible. Reducing
suicides and self-harm in prison is a key objective and a great deal of work has been and continues to be
done in this area.
2. Deaths in prison remain a rare event. Sadly, the largest proportion of those who die in custody take
their own lives (see Table 1 below). Good care and support from staV saves many lives, but such instances
go largely unreported. 141 prisoners were resuscitated following self-harm incidents in 2002, which reflects
a lot of staV eVort and skill. The rate of self-inflicted deaths in prison is substantially higher than the rate
of self-inflicted death in the community (although it is not greater than that of people under supervision in
the community).
3. An increasing number of vulnerable people are passing through the Criminal Justice System and the
general prison population contains very large numbers of prisoners who enter custody already struggling
to cope with a wide range of diYcult issues. These include drug and alcohol abuse, family background and
relationship problems, social disadvantage or isolation, previous sexual or physical abuse, and mental health
problems. Studies suggest, for example, that 90% of all prisoners have shown evidence of at least one of the
following: personality disorder, psychosis, neurosis, and alcohol misuse and drug dependence. These factors
increase the likelihood of self-harm and suicide; indeed, self-harming and suicidal behaviour often pre-date
custody, and may have started early in life. Statistics show that 20% of sentenced men and 44% of women
on remand report having attempted suicide in their lifetime.
4. The Prison Service is taking forward initiatives to help people deal with these issues and make them
more able to cope in the prison environment, and in the future upon their release. But there are, regrettably,
no simple solutions, and the reasons for self-inflicted deaths are complex.

Q1. What are the main causes of deaths in prisons? Are there any common factors? Are there particular aspects
of conditions of detention, or the treatment of detainees, or the cultural background of prisoners or prison
oYcers, that contribute to:
— Suicide and self-harm in prisons?
— Other deaths or injuries in prisons?
1.1 Suicides in prison seem to be caused by the combined eVects of imported vulnerability, the exposure
of this vulnerability by aspects of prison regimes, the eVects of prison quality and continuing life events
occurring once in prison. Table 1 shows the number of deaths in custody during the period 1998–2002:

Table 1

Deaths by natural/other
Year Self-inflicted deaths* causes Total
1998 82 56 138
1999 91 58 149
2000 81 63 144
2001 72 68 140
2002 94 71 165
Total 420 316 736

*The term self-inflicted death includes deaths where it appears that the death occurred as a result of a
person’s own actions.
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Joint Committee on Human Rights: Evidence Ev 27

1.2 In the calendar year 2003 to date (13 August), there have been 61 self-inflicted deaths; and 49 deaths
by natural/other causes. In the financial year to date (13 August) there have been 31 self-inflicted deaths and
31 deaths by natural/other causes. This compares to 55 self-inflicted and 47 natural/other cause deaths at
this time last calendar year and 36 self-inflicted deaths and 25 natural/other cause deaths at this time last
financial year.
1.3 The most common method of self-inflicted death in prison is hanging, which is likely to be related
to the restriction of access to other methods in a prison environment. The methods of self-inflicted deaths
(1998–2002) are shown in Table 2.

Table 2
Self-
Food Refused stran-
Year Sex Hanging Overdose Cutting SuVocation refusal medication gulation Arson Total
1998 Male 78 0 1 0 0 0 0 0 79
1998 Female 3 0 0 0 0 0 0 0 3
1999 Male 81 2 2 0 0 0 1 0 86
1999 Female 5 0 0 0 0 0 0 0 5
2000 Male 66 4 2 0 0 0 0 1 73
2000 Female 7 0 0 1 0 0 0 0 8
2001 Male 58 2 2 2 1 0 1 0 66
2001 Female 6 0 0 0 0 0 0 0 6
2002 Male 80 1 1 0 1 2 0 0 85
2002 Female 9 0 0 0 0 0 0 0 9
Total 393 9 8 3 2 2 2 1 420

1.4 The causes of deaths by natural and other causes in the years 1998–2002 are provided in Table 3. The
general upward trend of natural cause deaths is probably accountable to the increasing numbers and age of
the prison population.

Table 3

Cause of death 1998 1999 2000 2001 2002 Total


Stroke related 0 1 1 0 5 7
Heart related 5 13 16 9 18 61
Cancer related 1 7 12 2 5 27
Asthma related 0 3 1 2 1 7
Long term illness 0 1 2 1 0 4
Brain related 1 3 1 0 1 6
Not recorded 39 20 17 44 19 139
Liver or renal failure 0 2 0 0 1 3
Drug abuse 1 2 3 0 4 10
Other 2 4 1 2 17 26
Outside prison* 3 1 3 8 0 15
Homicide 4 0 3 0 0 7
Choked on vomit 0 1 0 0 0 1
Pneumonia related 0 0 1 0 0 1
Mutilation 0 0 1 0 0 1
Old age 0 0 1 0 0 1
Total 56 58 63 68 71 316

*This category includes deaths of prisoners on leave, or who absconded.


1.5 The characteristics of prisoners who have died in custody by self-inflicted means during 2002 are
overviewed below. Where relevant, comparisons are drawn with deaths that have occurred in previous years,
and where possible, statistics are given for 2003 to date.

Age

1.6 The age-profile of those who died in 2002 is shown in Table 4. Most deaths occurred in the 25–39 age
groups. The age-range of the 94 deaths was from 16 to 58. The mean age was 32 years. Two juveniles (15–17
year olds) and 12 young oVenders (18–20 year olds) died. The remaining 80 were adults, 38% of whom were
in the 30–39 year age group. This is similar to the age-profile of those who have died in previous years and
broadly reflects the age-profile of the general prison population.
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Ev 28 Joint Committee on Human Rights: Evidence

Table 4
Age Group Number %
15–17 years 2 2
18–20 years 12 13
21–24 years 11 12
25–29 years 17 18
30–39 years 30 32
40–49 years 16 17
50–59 years 6 6
Total 94 100

Gender
1.7 Ten per cent of cases of self-inflicted death involved females. This figure is higher than would be
expected, given that women only account for 6% of the prison population. So far in 2003, the relative
proportion of female SIDs is even higher—of the 58 deaths up to 4 August, 10 have been female. An
important point is that, in the community, women make up a quarter of all deaths. Taking into account the
proportions of men and women in custody, a disproportionate number of those who kill themselves in
prison are women.

Ethnicity
1.8 Eighty nine per cent who died in 2002 were white; white prisoners comprise around 78% of the prison
population. 4% of those who died were Asian; around 3% of the prison population is Asian. Five per cent
of those died were black; around 15% of the prison population is black. In 2003 (to 4 August), of the 58
deaths, four have been non-white. These figures show that a disproportionate number of self-inflicted deaths
occurred amongst white prisoners. This is a consistent research finding.

OVence type
1.9 As illustrated in table 5, the most common oVence-type of those who died during 2002 is violence
against the person, followed by robbery, other criminal oVences and burglary. Published research is
consistent in reporting that those who die are more likely (than the general prison population) to be
imprisoned for violence-related oVences.

Table 5
OVence-type Number %
Violence against the person 25 27
Sexual oVences 7 7
Burglary 12 13
Robbery 15 16
Theft & handling 11 12
Fraud & forgery 1 1
Drug oVences 9 10
Other oVences 14 15
Total 94 100

Legal Status
1.10 Forty one (44%) of those who died in 2002 were sentenced; the remainder were either on remand
(38%), convicted unsentenced (13%) or in prison awaiting further reports (Judgement Respited—J/R) (5%).
Unsentenced prisoners account for less than 20% of the prison population. That the vast majority of those
who die are unsentenced is consistent with previous years.

Sentence Length
1.11 Consistent with previous years’ data and published research, sentenced prisoners who die are likely
to be serving lengthy prison terms or life. In 2002, 71% of the 41 sentenced prisoners who killed themselves
were serving terms of over 18 months. Twenty two per cent were serving life-sentences.
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Joint Committee on Human Rights: Evidence Ev 29

Latency
1.12 A consistent finding is that the majority of prisoners who die have been in the establishment for
relatively short periods at the time of death. Table 6 shows the latency between prisoners’ receptions at the
establishment and their death. Just over half (54%) of prisoners who died in 2002 spent less than a month
in custody (52% in 2001).

Table 6

Number %
'1 day 7 7
1 to 2 days 7 7
3 days '1 week 12 13
1 week '1 month 25 27
1 month '3 months 21 22
3 months '6 months 13 14
6 months '12 months 7 7
1 year or more 2 2
Total 94 100

Establishment-Specific Factors
1.13 As in previous years, the majority of self-inflicted deaths (64%) in 2002 occurred in Category B Local
prisons. It has been found that male local prisons that experience a self-inflicted death are statistically more
likely to experience further death/s. In 2002, 52 establishments experienced a self-inflicted death:
— 2%—One prison (Durham) experienced six deaths (four males and two females).
— 4%—Two prisons (Lewes and Holme House) experienced five deaths.
— 4%—Two prisons (Dovegate and Hull) experienced four deaths.
— 10%—Five prisons (Exeter, Leeds, Woodhill, Bullingdon and Bedford) experienced three deaths.
— 25%—13 prisons experienced two deaths (Blakenhurst, Bristol, Brixton, Doncaster, Liverpool,
New Hall, Northallerton, Nottingham, Parc, Preston, Styal, Wandsworth and Wealstun).
— Finally, 56%—29 establishments experienced one death.
1.14 There is no firm evidence of a correlation between the prison population and the number of prisoners
who kill themselves, although it is likely that an increase in prison population has an impact on the amount
of time staV can spend with each individual prisoner. Overcrowding may also result in an increase in the
length of time prisoners are locked in their cells, rather than engaged in purposeful activity. More people
being received into custody may mean that some prisoners are located further from home, which, in turn,
may mean that they receive fewer visits from family and friends.
1.15 Only three (Dover in Kent, Haslar in Hampshire and Lindholme in Doncaster) of the UK’s nine
removal centres are managed by the Prison Service. They hold only male detainees (individuals detained
prior to removal from the UK, overstayers, failed asylum seekers and illegal immigrants). These centres are
managed under the Detention Centre Rules published in April 2001. The regime is considerably more
relaxed than the regime in prison (as detainees are not criminals).
1.16 Since September 2000, there have been two self-inflicted deaths involving detainees in the Prison
Service managed centres. (On 31 January 2003, Michail Bodnarchuk, a Ukrainian national, hanged himself
at HM Immigration Removal Centre Haslar. He was due for removal on the day of his death, and had been
resident at Haslar since 8 November 2002. On 31 March 2003, Rajwinder Singh Mutti hanged himself at
HMP Blakenhurst. Mr Mutti, an Indian national, had been on remand at Blakenhurst since 3 February 2003
for an oVence of grievous bodily harm; he was also detained under the 1991 Immigration Act.)
1.17 The identification of at-risk detainees is made more diYcult by the diYculties in communication and
the lack of personal history information. The F2052SH (see paragraph 2.5 below) procedure operates in
detention centres as it does in prison establishments, with an active Suicide Prevention Team.
1.18 As mentioned above, evidence suggests that minority ethnic prisoners are less likely to take their
own lives than white prisoners. Cases of self-inflicted death among black and Asian prisoners are
proportionately less in comparison with the rest of the prison population; the statistics for the years
1996–2002 show that, while 20% of the prison population is composed of individuals from minority ethnic
groups, minority ethnic prisoners represent only 9% of the number self-inflicted deaths.
1.19 The Prison Service annual report, published on 15 July 2003, said that over the past financial year,
5.1% of staV were from a minority ethnic group (exceeding the key performance target of 4.5%). Good
prisoner/staV relationships are central to the quality of life in prison, which is thought to be a factor in suicide
prevention. Results of research measuring the quality of prison life are expected in the summer of 2004.
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Ev 30 Joint Committee on Human Rights: Evidence

Q2. What practical steps have already been taken, and what further steps are being considered to prevent:
— Suicide and self-harm in prisons?
— Other deaths and injuries in prison?
2.1 Reducing prisoner self-inflicted deaths and managing self-harm is a key priority for Ministers and the
Prison Service. A proactive three-year strategy to develop policies and practices to reduce prisoner suicide
and manage self-harm in prisons was announced in February 2001 by the then Home Secretary, Jack Straw,
and was implemented from April 2001. The launch of the current strategy followed a thematic inspection
review by Sir David Ramsbotham and an internal review by Ingrid Posen (former Head of Safer Custody
Group). It replaced the 1994 Caring for the Suicidal in Custody Strategy, which was generic across the estate,
focussed on awareness, and stressed the responsibility of all staV. Pre-1994 approaches had been
primarily medical.
2.2 The current strategy is holistic in approach, more overtly preventative, risk-based, and strongly
dependent on other approaches (within prisons on a supportive culture based on good staV/prisoner
relationships and constructive regimes; beyond prisons on the cooperation of other agencies). It is ambitious
in scope and in demanding year-on-year reductions in suicide and self-harm.
2.3 Projects are underway to improve pre-reception, reception an induction arrangements, to better
facilitate inter-agency information exchange, and to develop safer prison design, including “safer cells”.
New evidence based healthcare reception screening arrangements are being implemented and include
measures to better detect vulnerable prisoners. Thirty full-time suicide prevention co-ordinators (SPCs)
have been appointed in high-risk establishments, and a further 102 mostly part-time SPCs are now operating
across the estate. Wing staV are supported in their work by prisoner peer support schemes and, in the most
needy prisons, by mental health in-reach teams, similar to community mental health teams. Samaritans are
working with the Prison Service to select prisoner “Listeners”, who are then trained to listen (though not
to give practical advice) to all prisoners who need somebody to talk to, often seven days a week, 24 hours
a day.
2.4 An investment of over £21 million is allowing physical improvements to be made at six pilot sites:
Feltham, Leeds, Wandsworth, Winchester, Eastwood Park and Birmingham. The money is being spent on
improvements to detoxification centres, reception and induction areas, the installation of First Night
Centres and the creation of crisis suites and gated cells that enable staV to watch at-risk prisoners closely.
2.5 Improved processes for the identification and management of prisoners at risk of suicide and self-
harm are being developed to replace the current “F2052SH” procedures. Any member of staV can raise an
F2052SH in respect of a prisoner considered to be at risk of suicide or self-harm. An individual care plan is
then put in place for so long as the crisis lasts, with regular multi-disciplinary reviews. Changes in
detoxification facilities and procedures are also being introduced. StaV awareness and training are
recognised as key to the successful outcome of many of these initiatives and training programmes are being
developed alongside new procedures.
2.6 The Prison Service is also determined to learn lessons from death in custody. The programme of work
embarked upon includes a fresh look at strengthening investigations procedures to include an independent
element and better learning and dissemination of lessons arising in particular cases. Investigation reports
are already routinely disclosed to the families concerned. (See also question 5 below.)
2.7 Problems of inter-prisoner violence and bullying, particularly among young people in custody, are
being readdressed through development of a violence reduction strategy. This will provide a national
framework of protective mechanisms and positive behaviour management. Work is on going with other
services to ensure that the Prison Service’s work in this field is consistent with a national, multi-agency
approach.
2.8 There is strong support for the strategy from groups represented on the Ministerial Roundtable on
Suicide, which is chaired by the Prisons and Probation Minister, Paul Goggins. Membership includes the
Howard League, Prison Reform Trust, Inquest, the Youth Justice Board, Prisons and Probations
Ombudsman, HM Chief Inspector of Prisons and Samaritans. Prison Health, the partnership between the
Prison Service and the Department of Health, is also represented.
2.9 A number of intervention strategies have been introduced into prisons for people who self-harm.
These include crisis counselling, support groups and specialised psychological interventions. The Prison
Service recognises that self-harm is a particular problem among women prisoners. Safer Custody Group
findings reveal that attempted suicide/self-injury is more prevalent amongst women that men in prison by
a ratio of 18:1 (2003). At three women’s prisons—Holloway, Durham and Bulwood Hall—Dialectic
Behaviour Therapy has been introduced. This is an innovative programme developed in the USA by Marsha
Linehan, originally for women with “borderline personality disorder” (BPD) who also self-harm or engage
in suicidal behaviours. It has been well researched and found to be significantly better than other treatments
in producing positive changes for this client group. Treatment targets of DBT include reducing self-harm,
increasing coping skills, decreasing impulsive behaviours and improving emotional regulation. DBT has
also been found to have positive treatment eVects on other behaviours such as abuse and aggression.
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Joint Committee on Human Rights: Evidence Ev 31

2.10 Over the next few months the outcome of the Safer custody strategy will be reviewed, taking into
account pilot project evaluations and emerging research findings. The next steps and approaches will be
resolved in consultation with partner agencies and organisations. It is likely that approaches in the future
will concentrate more on better care for people than on processes and the Prison Service will seek to reduce
the desire of individuals to attempt suicide by improving the custodial experience and the feelings of safety
in establishments. It will seek to build on the close relationship and working partnership with Prison health.
For many in prison the growing links with local healthcare will aid continuity of treatment. The strategy is
also likely to include greater links with the resettlement agenda and a broader understanding of the issues
to share with the public.

Q3. What has been done to foster a greater “human rights culture” in prisons and other detention facilities?
What more could be done? Would a human rights approach to conditions of detention and to prison management
contribute to the prevention of deaths in custody?

Q4. Are you satisfied that guidance and practice in the prison service is suYcient to comply with obligations
under Articles 8, 3 and 2 of the European Convention on Human Rights?
3.1 The Prison Service has undertaken an extensive programme of training for staV on the introduction
of the Human Rights Act and its implications for the Prison Service. This has been supported by the
provision of written information to every member of staV, together with information packs made available
to prisoners through the prison library. In conjunction with the Prison Reform Trust, a booklet specifically
designed for prisoners was produced and issued in July 2001. Legal Services OYcers from all prisons have
attended conferences, and governors together with senior policy staV have attended seminars. Presentations
have been made to dispersal prisons, staV responsible for life sentenced prisoners and Race Relations
oYcers.
3.2 All policy leads are aware that both new and existing policy must be HRA compliant. In those areas
where there has been doubt, legal opinion has been sought and changes made. During the consultation
process for new policy the Human Rights implications of any changes must be considered by policyholders.
3.3 The belief is that current policy and guidance in the Prison Service is in line with ECHR; however, if
successfully challenged as non-compliant, we will address those issues at the time. The general nature of
some ECHR terminology and its reliance on general principles mean that it is often through a policy being
tested in the courts that precedent or non-compliance is established.
3.4 While it would be naı̈ve to insist that all practice is always compliant with policy, we have a thorough
process of Internal Audit, auditing of Prison Service Standards and both announced and unannounced visits
by Her Majesty’s Inspectorate of Prisons that is designed to ensure that policies are being correctly applied.
To support this we also have complaints procedures that allow prisoners to complain about their treatment
to the Prison Service, and finally, if not satisfied, to the Prisons and Probation Ombudsman.
3.5 The provisions of the Human Rights Act and its underlying principles contribute to suicide and self-
harm reduction in prison. (See also Question 5 below.)

Q5. Are the Article 2 ECHR requirements of an eVective, prompt and independent investigation of deaths in
custody, with eVective participation by next-of-kin. Met by the current system? How could the eVective
investigation of deaths in custody be better ensured?
5.1 Since April 1998 all deaths in custody have been investigated by the Prison Service. Investigations are
carried out by senior governors. Although “independent” of the prison concerned, investigating oYcers are
usually from the same area and our investigations could not be regarded as other than internal. Investigating
oYcers act on behalf of the Commissioning Authority (CA), the area manager or equivalent, responsible
for the establishment in which the death occurred, to whom they are accountable. The CAs are in turn
accountable to the Director General and his Deputy. Currently therefore both the commissioning of
investigations and “ownership” of reports rest with the operational line of the Prison Service.
5.2 The short answer to the first part of this question, therefore, is that the Prison Service is playing its
part but currently remains vulnerable to judgements in individual cases that our internal investigations do
not contribute enough—thus supporting the case for strengthening our investigations, which we are doing
as part of the three-year Safer Custody Programme. (See paragraph 2.1 above.)
5.3 The Joint Committee will be aware that this is a fast moving and still developing area of jurisprudence,
which we expect to be further clarified when the Lords give their judgement in the case of Amin (heard in
July) and Middleton, which is to be heard early next year. Currently the position is that the requirements of
an Article 2 investigation (the so-called “Jordan” criteria of independence, eVectiveness, reasonable
promptness, public scrutiny and family involvement) can be met by an amalgam of inquiries and
investigations—the Prison Service investigation, the Inquest, civil proceedings, a criminal trial—and no
single element is expected to meet Article 2 on its own (although that is possible). The Lord chief Justice
went out of his way to praise Governor Ted Butt’s report in the Mubarek case, notwithstanding that it
was internal.
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Ev 32 Joint Committee on Human Rights: Evidence

5.4 The attached Annex A2 prepared as background to our work in this area, provides further
information about the current legal position. But the reasons for strengthening investigations into death in
custody go beyond Article 2 compliance. The main reason we want to strengthen our investigations into
deaths in custody is to contribute to the suicide prevention strategy—to ensure a better focus on what went
wrong and why and to extract learning so as to minimise recurrences. The three-year safer custody
programme therefore incorporated a project designed to establish a system of investigation into deaths in
custody, which is:
— fair, open and timely;
— has appropriate elements of specialist input and independence;
— secures public confidence;
— explains what happened and why;
— provides for the Prison Service to learn from any identified failures;
— provides the fullest possible factual information to the Coroner as a basis for the inquest; and
— involves the family of the deceased fully and appropriately.
5.5 During 2001 Safer Custody Group undertook a wide scale consultation exercise, consulting interests
within and outside the Prison Service on how such a system could be developed. Following this exercise an
options paper was put to Ministers in which four options were identified. These were:
— extend an existing external prisons-related role, most likely that of the Prisons Ombudsman, with
both commissioning and investigations independent of the Prison Service;
— create a new independent body based on the police model, with a mixture of external and internal
investigators, with commissioning and investigations independent of the Prison Service;
— dedicated team(s) of investigators with pools of expert assistants. All investigations independent-
led or supported depending on circumstances of case, with Prison Service retaining commissioning
and some “ownership” of investigation reports; and
— strengthened inquest process. (At the time the options paper was prepared the fundamental review
of the Coroner’s system had been commissioned but had not reported.)
5.6 Ministers asked for the Prisons and Probation Ombudsman option to be worked up and costed and
this work is currently in hand. It is being taken forward by the Home OYce in the context of putting the
Prisons and Probation on a statutory footing and, simultaneously extending his role to include investigating
deaths in prison custody (and deaths of probation hostel residents). Both the report of the fundamental
review of Coroners and Dame Janet Smith’s report into the Harold Shipman aVair make recommendations
for radical changes to the Coroner’s role, on which a view needs to be taken before a final decision on the
Prisons and Probation Ombudsman option is made.
5.7 The Prisons and Probations Ombudsman is unlikely to take over responsibility for investigating
deaths in custody before April 2005. In the interim Safer Custody Group is working with area managers
(who commission death in custody investigations) to do what we can to strengthen our current procedures
in a variety of ways, for example, by improving clinical input, incorporating independent elements into some
investigations and their management, widening terms of reference and involving families to a far greater
extent. Five areas are trialling revised guidance on investigating deaths in custody. This is attached at
Annex B.3
Phil Wheatley
Director General
18 August 2003

4. Memorandum from the Commission for Racial Equality

Introduction

Established under the Race Relations Act 1976, the Commission for Racial Equality has a statutory duty
to work towards the elimination of unlawful racial discrimination and the promotion of equality of
opportunity and good relations between people of diVerent racial groups.

2 Not printed here.


3 Not printed here.
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Joint Committee on Human Rights: Evidence Ev 33

Following the recommendations of the Stephen Lawrence Inquiry and representations the Commission
itself had long made4, the Act was amended in 2000 both to extend its provisions on unlawful racial
discrimination to cover the operations of the criminal justice agencies and to establish a duty on such bodies
to work towards the elimination of unlawful racial discrimination and the promotion of equality of
opportunity and good relations between people from diVerent racial groups.
This later duty to promote race equality lies upon not only the criminal justice, health service and other
agencies responsible for holding people in custody but also upon the bodies responsible for inspecting and
investigating them, or supervising those who do.
In the case of all such bodies, the amended Act requires them to prepare and implement race equality
schemes indicating how these duties will be implemented, how progress toward these aims will be monitored
and how those aVected will be consulted. The pursuit of such work will assist agencies involved in custodial
care and the investigation of deaths in custody in focusing eVectively on their functions, learning lessons
from catastrophic events such as deaths in custody and in recognising the negative impact such events can
have on race relations generally.

Background

The experience of the Commission, including that arising from its conduct of an ongoing formal
investigation under the 1976 Race Relations Act into possible unlawful racial discrimination by HM Prison
Service of England and Wales5, is that:
— The impact upon race relations of controversial deaths in custody involving members of diVerent
ethnic minority communities has been, and continues to be, strongly negative.
— The perception of wrong doing has persisted even where public authorities may, upon
investigation, have been shown to have acted correctly, partly because the independence of the
investigation has not been accepted or not been evident.
— When more general failures of practice linked, directly or indirectly, to race have been
inadequately investigated, left unresolved or have just not been acknowledged by those
responsible, the damage to good race relations has been significant.
We share the view expressed on these matters by the Attorney General in his recent Review of the Role
and Practices of the CPS that:
A death in custody takes on added significance when the person who has died belongs to a group
which considers itself as having had historically strained relationships with the police and other
institutions of the criminal justice system.6
As, in the recent past, members of various ethnic minorities have been significantly over represented at
various times in diVerent aspects of death in custody (for instance, deaths in police custody excluding deaths
arising from police car chases, deaths from the use of control and restraint procedures in HM Prison Service
establishments or suicide in those establishments), the Commission has been directly interested in ensuring
the full investigation of such deaths and in seeing established eVective mechanisms to ensure that the lessons
learned from such investigations are properly followed up by improvements in practice.
The Commission has given evidence and published its views over a number of years in respect of the
concerns it has shared about the issue of deaths in police custody, the significant over representation of black
members of the public in such deaths and the obvious weaknesses in the investigation machinery involved.
More recently, there has been progress in establishing more independent means of investigation. The
establishment of the Independent Police Complaints Commission is a further step in a direction that the
Commission welcomes. Progress also appears to have been made in reducing the previously marked
disproportionality in ethnic minority involvement in such deaths7.

4 The Stephen Lawerence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, February 1999 and Review of the
Race Relations Act, April 1998.
5 The Commission does not have a power to investigate deaths in custody but sections 48 to 52 of the Act give the Commission
the power to conduct formal investigations into the actions of organisations if it has grounds to believe that unlawful racial
discrimination may have taken place. In the summer of 2000, the Commission was considering launching such an investigation
into HM Prison Service of England and Wales. Following the conviction in November 2000 of Robert Stewart for the murder
of Zahid Mubarek in YOI Feltham, the Commission decided to add “the circumstances leading to the murder of Zahid
Mubarek and any contributing act or omission on the part of the Prison Service” to the matters to be investigated.
6 A Review of the Role and Practices of the Crown Prosecution Service in Cases Arising from a Death in Custody by the Rt Hon
The Lord Goldsmith QC Her Majesty’s Attorney General, July 2003, page 3.
7 Though diVerent totals are provided (arising possibly from diVerent definitions as to the term “in custody”), figures issued for
the police related deaths for the period from 1999 to 2002 show that though ethnic minorities are still over-represented, there
has been a downward trend in the percentage of those involving black or Asian members of the public as shown in annual
statistics issued by the Home OYce, the Police Complaints Authority, and Inquest as well as in the above mentioned Review
of the CPS.
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Ev 34 Joint Committee on Human Rights: Evidence

However, there remain significant areas concern. The over representation of individuals from particular
ethnic groups in some areas of deaths in custody continues and, while progress has been made in respect of
the responses to deaths in police custody, those in other areas of custody have not been the focus for the
same institutional arrangements. There is, for instance, no parallel body to the Police Complaints Authority
or the future IPCC in respect of deaths in the custody of HM Prison Service.
There are several race equality issues which arise from all these matters. These include:
— Do the arrangements mean that issues of possible racial motivation in respect of the actions which
led to or caused the death have been eVectively brought out and considered?8
— Do the arrangements enable the race equality consequences of poor practice and diVerent needs/
circumstances of diVerent ethnic groups among those in custody to be understood and
responded to?
— Do the arrangements properly respond to the needs and concerns of relatives from ethnic minority
communities?9
Some of these concerns should be the focus for the work the various agencies involved should be
undertaking as a result of the Race Relations (Amendment) Act 2000 as suggested in the Introduction.
In this evidence to the Joint Committee we wish to drawn the Committee’s attention to three matters:
— The need for a primary attention to be focused upon the use of lessons gained from the
investigation of those deaths which have occurred to prevent any further such tragedies.
— The urgency of following the better practice which has been developed in respect of deaths in police
custody with parallel arrangements for other areas of custody.
— The problem faced by relatives when seeking expert or legal representation.

The Importance of Ensuring that Good Practice in Custodial Care is Developed and Followed
Much of the discussion around Article 2 of the European Convention of Human Rights has focused on
the issues of how best should investigations be conducted in order to fulfil the procedural obligation which
falls upon the state as a result of the article10. There has been less discussion about the need to ensure that
the lessons learned from individual investigations are then followed through either by the development of
better custodial practice or by ensuring that measures already agreed upon as part of such a practice are
actually implemented.
While clearly the procedural obligation is necessary to determine whether or not the state has fulfilled its
positive duty to take reasonable steps to safeguard the lives of those in its custodial care, the existence of
arrangements to ensure that the lessons learned from investigations are eVectively implemented is
fundamental to the actual fulfilment of that duty. The Commission is concerned that any procedures put in
place to conduct investigation of individual deaths are also capable of examining how the lessons which
should have been learned from one death may not have been implemented eVectively enough to prevent
subsequent deaths.
In 2000, the Commission launched a formal investigation under the Race Relations Act 1976 into, among
other matters, the circumstances leading to the death of Zahid Mubarek who was murdered while in the
custody of HM Prison Service of England and Wales. The overall investigation has not yet concluded and
the Commission is not in a position at the time of preparing this submission to discuss all the issues arising
from the investigation that might be relevant to the Joint Committee’s deliberations. However, the report
of the investigation in so far as it directly concerned the murder of Zahid Mubarek has been published11.
The Commissioners nominated to conduct the investigation found that the prison authorities failed to
follow their own stated procedures and that these failures created the circumstances in which a prisoner with
a record of violence and known racist views was able to share a cell with a prisoner from an ethnic minority
who was, therefore, more likely to be a target for assault by him. In particular, the Commissioners noted
that several of the practice areas concerned procedures which had been laid out in HM Prison Service Orders
or Instructions over a period of many years. In several instances, the fact that these Orders or Instructions
were not being followed was a matter known to HM Prison Service, either as a result of published reports
by HM Chief Inspector of Prisons or as a result of the Service’s own internal audits.

8 Section 9 of the Attorney General’s Review of the CPS discusses this issue appropriately.
9 For instance, the Fundamental Review of the coroners service found that among its “critical weaknesses” was the fact that
“There has been no reliable or systematic response to minority community wishes, traditions and religious beliefs” (p 17, point
g, Cm 5831).
10 These issues include not only matters such as the independent nature of any investigation and whether or not relatives have

a right to participate in any investigation but also whether or not there should be an investigation of a public character. The
House of Lords will indicate further its opinion on some of these matters when it delivers its judgment in the case of Amin
concerning the death of Zahid Mubarek.
11 A Formal Investigation by the Commission for Racial Equality into HM Prison Service of England and Wales: Part 1: The

Murder of Zahid Mubarek, CRE, July 2003. It is the intention of the Commission to conclude the investigation and publish
a final report in the autumn of 2003.
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Joint Committee on Human Rights: Evidence Ev 35

In addition to the issue as to whether or not the family of Zahid Mubarek have a right to a public inquiry
into what happened, there is, therefore, also the issue of how such persistent failures of good practice can
be identified and prevented.
It is apparent that, even in areas of custody—such as the police—where some institutional arrangements
have existed with a responsibility to give attention to such matters, persistency of bad practice is hard to
shift.
The review by the Police Complaints Authority of police shootings under section 79(1) of the Police Act
1996 published by the Authority in January 2003 found that
Although each incident in which a member of the public is shot by an armed police oYcer is the
subject of a detailed and thorough investigation, systematic analysis across time and over incidents
is limited.12
It noted that “there has been one important UK shootings review prior to this one”, the “Burrows
Report”, covering shootings between 1991 and 1993. The authors added:
It is beyond the scope of the current review to comment on the scope of the recommendations
arising from the Burrows Report. However, it is regrettable that there is no formal mechanism for
assessing their implementation and many of the findings presented below would suggest that
implementation has not been universal.13
The concern such a failure to act provokes is reinforced by the finding of the review in regards to the
shootings it examined.
Investigations often produced recommendations which were accepted at Chief OYcer level but did
not appear to be reflected in the future operation behaviour of the force, compounded by the fact
that there is no outside monitoring of the forces response to the recommendations made.14
The review recommended that the recommendations for action made by investigators should be passed
to the Inspectorate and to the bodies in the police service responsible for disseminating best practice
including the “Standing Committee to Learn Lessons from Adverse Incidents”.
The Prison Service does not have a parallel to the PCA and the future IPCC. Proposals have been
consulted upon by the Home OYce to establish the present oYce of the Prisons and Probation Ombudsman
upon a statutory footing and to extend his remit to cover all deaths in HM Prison Service custody. The
Commission has not itself been consulted upon these proposals. While it supports the long standing request
by the Ombudsman that his oYce be put on a statutory footing, the Commission’s own experience in
conducting an investigation into the circumstances leading to one death in which negligent actions by HM
Prison Service staV created the context in which a murder could take place, suggest that a more substantial
change is required.
At present, under the Coroners Act, all deaths in prison custody must result in a Coroner’s inquest before
a jury. This requirement, which has been part of coronial law for centuries, is an important expression of
the need for independence in the investigation of any death in a prison. It does not, however, meet two
considerations relevant to our concerns on how to ensure the implementation of good practice.
First, if a coroner is expected to fully explore the factors of possible negligence lying behind a prison death,
the scale of the investigation may be beyond their capacity to deliver. This point was made by the West
London Coroner in evidence to the House of Lords in respect of the death of Zahid Mubarek when she
explained why she did not consider that she was in a position to hold an inquest into his death. For a coroner
in such circumstances to rely upon an internal investigation by HM Prison Service would be both
inappropriate and inadequate. The findings of our Nominated Commissioners in respect of the murder of
Zahid Mubarek reinforce this point: the internal investigations were inadequate and the causes were
complex.
Secondly, the coronial system is not designed to ensure the pursuit of good practice on the part of agencies
such as HM Prison Service. A Coroner’s power to notify any authorities of actions it may be advisable to
take related to issues revealed by the death they have investigated (letters sent under rule 43 of the Coroners
Rules) is not consistently used nor is it publicly reported. Research conducted for the Fundamental Review
of the service15 found that
One third of Coroners did not use rule 43 at all last year. At the other extreme 6% of Coroners
raised more than 10 letters and one raised 60.
No outcome was reported for about a quarter of the rule 43 interventions. In 45% of the cases some
change had been implemented or the matter was in the action plan for the Agency concerned. In
a further 21% of cases the issue was under review. In 10% of cases, the letter had either been rejected
or inadequate action (in the Coroners’ view) taken.16

12 Review of shootings by police in England and Wales from 1998 to 2001, Police Complaints Authority, January 2003, p 12.
13 Review of shootings by police in England and Wales from 1998 to 2001, Police Complaints Authority, January 2003, p 14.
14 Review of shootings by police in England and Wales from 1998 to 2001, Police Complaints Authority, January 2003, p 112.
15 Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review, 2003,
Cm 5831.
16 Review of Coroners: Analysis of Survey: UK of rule 43, 2003, p 4.
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Ev 36 Joint Committee on Human Rights: Evidence

In 6.6% of the cases, the rule 43 letter was sent to HM Prison Service 17. Neither the Prison Service
nor any agency assisting Coroners, had, at the time covered by the Commission’s investigation into
the circumstances leading to Zahid Mubarek’s death, any way of gathering together what these
letters may have said, whether they were being properly responded to by the Service and whether
that response led to the replacement of poor or negligent practice by consistent good practice.
In contrast to this situation, a recommendation that came out of the review of police shootings cited above
was that recommendations made by one investigation into a shooting involving a particular police force
should be included in the terms of reference of any future investigation into a shooting involving the same
force 18. This would help to make the issue of any persistent failure to follow proper practice clear and open.
The Fundamental Review went some way down this road in recommending that:
— a coroner’s findings and recommendations be sent to any statutory regulatory service which
regulates the activities of the recipient body and any inspectorate which inspects its work;
— these bodies should report on such recommendations and say whether or not they are satisfied with
the actions of the agency concerned which have followed; and
— the recipient agency should inform the coroner as to what they have done19.
These are clearly steps which are sensible, but they need an eVective institutional apparatus to handle them
if they are to result in the permanent implementation of better practice.
Such arrangements would need to supplement them with their own wider reviews to examine aspects of
deaths of custody which may not become apparent from the investigation of individual deaths. This is
particularly the case with diVerentials arising between ethnic groups.
One example of an area in which this kind of approach could have significant impact on Prison Service
practice is that of drug related deaths in prisons or the period immediately after release. Research evidence
indicates that crack cocaine (a stimulant) is the Class A drug most frequently used by ethnic minority males
rather than heroin (a depressant) which is the Class A drug most apparent in the white prisoner population.
Drug treatments in prison have been focused on heroin and not crack cocaine20. Monitoring and race impact
assessments of policies of the kind promoted by the amended Race Relations Act could help significantly
to direct improved practice to overcoming such diVerentials.
Another example is that of suicide in prison. Ethnic monitoring is not yet adequately developed to
pinpoint the extent and nature of the involvement of prisoners of Irish and Irish Traveller origin in suicide.
Significant concerns have been expressed by voluntary sector agencies working with such prisoners that the
treatment of such prisoners has not adequately met their needs and so has contributed to what some evidence
suggests may be higher rates of self harm and suicide in these groups21. On the other hand, no research
appears to have been conducted so far into the significantly lower rates of suicide for the Black group in
prison. The contrast is marked. Were the white group to experience the same rate of suicide as the black
group several dozen lives would be saved each year.
We consider the practical implications of these issues under the next heading.

Ending the Inconsistency Across Areas of Custody


The present arrangements for investigating deaths in custody provide no consistency between the diVerent
regimes. This both denies relatives of those who die in prison custody, for instance, the same level of response
to that provided after those who die in police custody. The contrast will become the greater after the IPCC
starts work.
It also means that good practice developed in response to deaths in one area of custody are unlikely to
be followed more widely. There is no practical reason for this inconsistency.
While the proposals of the Fundamental Review of the Coroners’ service would, if implemented, improve
matters so far as investigation of individual deaths is concerned, they would not of themselves resolve the more
fundamental problems: the level of investigation would continue to be limited (both by resourcing and by the
diYculty that the investigation of individual deaths would not succeed in uncovering important background
patterns) and the mechanisms for ensuring best practice was consistently implemented would be weak.

17 Review of Coroners: Analysis of Survey: UK of rule 43, 2003, p 17.


18 Review of shootings by police in England and Wales from 1998 to 2001, Police Complaints Authority, p 113.
19 Fundamental Review, pages 95 to 96.
20 See for instance DiVerential Substance Misuse Treatment Needs of Women, Ethnic Minorities and Young OVenders in Prison:
Prevalence of substance misuse and treatment needs, a Home OYce Research, Development and Statistics Directorate paper
available on-line at www.homeoYce.gov.uk/rds/pubsintrol.html published in 2003. in the week following release, prisoners
are 40 times more likely to die than the general population and over 90% of these deaths are related to misuse of drugs (see
Drug-related mortality among newly released oVenders, Home OYce research Findings Number 187, 2003). See also the
report Drug-related Deaths in Police Custody: A Police Complaints Authority study May 2003.
21 In 2003, HM Prison Service published a report, Review of Deaths in Custody at HM Prison Brixton, following concern over
the suicide of seven men of Irish origin in the prison between December 1999 and May 2002 which concluded that “no
corroboration was found for the general complaints made to us” but added that “the Service should not be complacent about
these matters . . . There is a need to provide better guidance for prison staV if such issues are to be properly addressed”
(paragraphs 8.29 and 8.30).
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Joint Committee on Human Rights: Evidence Ev 37

At the very least, there is a clear argument for extending the kind of arrangements proposed for the police
to all other areas of custodial practice (prisons, mental health, immigration detention centres and detention
centres run by the Services).
The design of the institutional arrangements should be guided by the principle that all areas of custody
are covered by arrangements which provide for:
— Accountable, independent and eVective investigation of individual deaths.
— A central focus where patterns of causes and contributory factors can be understood and analysed.
— Development of adequate remedial measures and lessons learned and their translation into good
practice guidance for the relevant staV.
— Establishment of monitoring and regulatory procedures and powers to ensure that the lessons
learned are implemented, lead to changed practices and that deaths do not continue to be caused
by the same contributory factors over a significant period of time.
The present situation is unsatisfactory and neither assists the staV of the agencies involved to improve the
way they work nor secures public confidence. The proposal to give the Prisons and Probation Ombudsman
responsibility to investigate deaths in prison custody should be considered in the light of such principles. If
an extended Ombudsman’s oYce was to be provided with the powers and the resources to meet those
principles, then the establishment of an additional agency might be considered disproportionate.

Providing Proper Assistance to Relatives


A responsibility laid upon the Commission by section 66 of the Race Relations Act is to consider
applications for assistance from members of the public who consider that they may have been unlawfully
discriminated against. The Commission has assisted many thousands of individuals in this way either with
legal representation or with expert advice. It is the experience of the Commission that the generality of these
individuals would not have succeeded with their claims if the Commission had not assisted them.
Relatives seeking to establish what happened after a death in custody face particular diYculties. Unless they
are completely confident in the independence of the investigation which then follows and wish to play no part
themselves, they need the assistance of expert advice and possibly also legal representation. The present
arrangements rely upon the work of voluntary agencies such as Inquest which have limited resources.
Such arrangements as are put in place in the future need not only to be open and accountable to relatives,
but also to provide them with the means to play their part in the investigative process.
15 October 2003

5. Memorandum from Mental Health Act Commission

I. Causes of Deaths of Detained Patients

Commission research into deaths of detained patients


1. Research undertaken by the Mental Health Act Commission on deaths of detained patients between
1997 and 2000 show that, as might be expected, the highest proportion of such deaths (more than 80%) result
from natural causes22. The 253 deaths from unnatural causes were mostly suicide. The causes of these deaths,
as determined at inquest, break down as follows:
Hanging23 86 Method unclear 7
Jumped from height 36 Accidental 5
Hit by train 29 Fire 5
Drowning 21 Hose-pipe to car exhaust 3
Self-poisoning by overdose 13 Self-suVocation 2
Unsure accident/suicide 15 Death caused by another person 1
Jumped from vehicle 9 Self-strangulation 1
Category split of 233 unnatural deaths of detained patients 1997–200024

22 Mental Health Act Commission (2001) Deaths of Detained patients in England and Wales; a report by the Mental Health Act
Commission on information collected from 1 February 1997 to 31 January 2000. Nottingham: MHAC. March 2001. p 8.
23 In our Deaths of Detained patients report (MHAC 2001, paragraphs 81–85), we note that various load-bearing supports, not
all of which would allow for suspension, were involved in deaths classified as “hangings” at inquest. This is further discussed
at paragraph 5.18 below.
24 Source: Mental Heath Act Commission (2001) Deaths of Detained Patients in England and Wales (ibid) Chart 14. This table
excludes 20 deaths whose cause was unknown at the time of the study.
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Ev 38 Joint Committee on Human Rights: Evidence

2. Twenty-two of the above patients had been subject to restraint in the week before their death, and four
of these were being restrained at the time of the incident that proved fatal to them. Researchers did not draw
any conclusions about the use of medication in this study, but the Commission’s 1995 study of deaths
between 1992 and 1994 counted 15 deaths (approximately 7% of all deaths in that study) as “iatrogenic”,
defining this in a non-pejorative sense as any death consequent to a health-care intervention25. Of these, 10
deaths appeared to be directly related to psychiatric medication. We discuss this further below (see 5.14 et
seq below), although not all of the 10 deaths will have been as a result of emergency interventions.
3. Only a third of the deaths tabulated above took place within hospital premises. About half of the
deaths took place in the wider community (through patients being absent from their place of detention,
whether authorised or not): the remainder took place in general hospital environments (where a patient may
have been moved following the incident leading to death).
4. In our reports on deaths of detained patients, the Commission has drawn general conclusions for
services regarding risk-assessment, observation of vulnerable patients, granting of leave etc. We do not
restate these in any detail in this submission, but will rather concentrate on those aspects of services that
give us much concern, and the ways in which we perceive human rights-based approaches being central to
challenging and developing current practices.

II. Matters of Concern to the Mental Health Act Commission in the Prevention of Patient Deaths
5. Particular aspects of conditions of detention and the treatment of detainees that cause the Commission
concern and are, in its view, avoidable contributory factors in patient deaths are set out in the following
paragraphs.

Anti-therapeutic environments within hospitals


5.1 Poor therapeutic environments within hospitals may be caused by bed pressures, inappropriate mix
of patients, or simply the general environmental state of wards. Such conditions may retard patients’
recovery and can also be contributive to patient behaviour that causes management problems, leading to
control and restraint, seclusion, etc, or to episodes of self-harm or suicidal attempts. In one recent visit report
on a London hospital, for example, Commissioners have alerted the hospital managers to the continuing
eVects of 200% bed-occupancy, low staV morale and the use of excessive force during control and restraint.
We have advised the hospital to attend these concerns urgently before there are serious injuries on the ward.
5.2 The Commission has noted Government recognition of “the significant pressure on acute psychiatric
beds, with services forced to maintain waiting lists, send people home on leave and place users in services
outside their area” and the need for a whole-systems approach in tackling the problem26. We also recognise
that the Department of Health’s Policy Implementation Guidance seeks to address the problems of
providing a therapeutic experience to patients under circumstances of overcrowding and pressures on
services27. Nevertheless, in our view there is much work to be done (see also paragraph 5.19 below) and the
Commission will continue to give high priority to monitoring the general conditions into which detained
patients are compelled to receive treatment for as long as we continue to exist.

Bullying, sexual and racial harassment on wards


5.3 Many hospitals fail to deal adequately with patient to patient bullying or harassment. Some of the
Commission’s concerns in relation to this problem are specific to women patients and patients from black
and minority ethnic communities.

Women patients
5.3.1 Twenty eight per cent of detained patients dying unnaturally between 1997 and 2000 were women28.
In its Ninth Biennial Report, the Commission noted some slow progress towards implementing NHS
directives on safety, dignity and privacy in mixed environments29. Whilst, in some hospitals, excellent
women’s services are being developed and implemented, the experience of Commissioners in visiting services
suggest that implementation of these objectives, which included establishing separate washing and toilet
facilities and safe sleeping arrangements alongside more general organisational arrangements for the safety
and security of women patients, has not been met in any meaningful sense in a number of services,

25 Banerjee S, Bingley W and Murphy E (1995) Deaths of Detained Patients: a review of reports to the Mental Health Act
Commission. A joint report of the Mental Health Act Commission and the Division of Psychiatry, United Medical and Dental
Schools of Guy’s & St Thomas’ Hospitals, London: Mental Health Foundation, December 1995. p 19.
26 Department of Health (2002) Cases for Change, Introduction. National Institute for Mental Health, England. p 6.
27 Department of Health (2002) Mental Health Policy Implementation Guide: National Minimum Standards for General Adult
Services in Psychiatric Intensive Care Units (PICU) and Low Secure Units; Department of Health (2002) Mental Health Policy
Implementation Guide: Adult Acute Inpatient Care Provision.
28 Mental Health Act Commission (2001) Deaths of Detained patients in England and Wales (ibid) paragraph 49.
29 Mental Health Act Commission (2001) Ninth Biennial Report 1999–2001, London: Stationery OYce. Chapter 6.33 et seq.
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Joint Committee on Human Rights: Evidence Ev 39

notwithstanding the view of the Department of Health that there is at least 96% compliance30. We have
previously warned that some services may comply with the basic elements of the Government’s objectives
without in reality oVering a quality service to women. The Commission has listed the following issues to be
addressed by service commissioning bodies and providers in providing care to detained women patients:
Service commissioning bodies and service providers should agree and monitor services for women
patients to ensure that such patients can:
— lock bedroom doors, using a system capable of being overridden by staV in an emergency;
— have a choice of a female key-worker;
— be in contact with other women;
— have the opportunity to take part in women-only therapy groups and social activities but have the
choice of taking part in mixed groups where appropriate;
— engage safely in a full range of such activities, even where their number is small compared to the
hospital population;
— have physical health checks on admission;
— have access to a female doctor for medical care;
— have access to a female member of staV at all times; and
— be assured of adequate supervision at night.
MHAC Practice Guidelines: service for women patients—(Recommendation 63, MHAC (2001) Ninth
Biennial Report, Chapter 6.38)
5.3.2 In our Eighth Biennial Report (1999) we suggested to Government that services could also be
required:
— to have policies relating to women’s safety available on every ward and reviewed every two years;
— to identify through risk-assessment women who are particularly vulnerable to sexual exploitation
or harassment and also men who have a history of harassment or violence towards women;
— to monitor all incidents of sexual harassment to identify problems in service provision;
— to ensure staV are appropriately trained in gender awareness and that safety and special needs of
women patients; and
— to appoint a designated oYcer with oversight for women’s issues31.
We continue to suggest such measures as elements of good practice in women’s services.

Black and minority ethnic patients


5.3.3 The Commission has long stressed the overrepresentation of patients from Black and minority
ethnic communities amongst the detained patient population, and the lack of equality in the provision of
services to such patients. We have been pleased to work alongside the University of Central Lancashire in
the recently published report for the Department of Health Engaging and Changing: Developing eVective
policy for the care and treatment of Black and minority ethnic detained patients32.
5.3.4 A lack of racial harassment policies outlining how to deal with harassment between patients, as well
as between staV and patients, continues to be a problem. The death of David Bennett starkly illustrates the
need for eVective policies in this area. Mr Bennett died in a medium secure unit having been restrained for
25 minutes, following an incident sparked by racial abuse directed at him. The coroner recognised that the
lack of a racial harassment policy and procedure in the unit was a contributory factor in the events that led
to his death33. Government has recognised generally that insuYcient attention has been paid to ethnicity
and gender and protection from abuse/harassment in acute mental health care34 and has made it a minimum
standard for Psychiatric Intensive Care Units and low secure units to operate “a clear policy on equal
opportunities and racial harassment which all staV and patients are aware of covering staV/patient and
patient/patient harassment signed up to by Trust Board and with monitoring of adherence”35.

30 Department of Health, personal communication to Mental Health Act Commission.


31 Mental Health Act Commission (1999) Eighth Biennial Report 1997–99, London: Stationery OYce. Chapter 10.72.
32 Department of Health (2003) Engaging and Changing: Developing eVective policy for the care and treatment of Black and
minority ethnic detained patients, London: National Institute for Mental Health in England, UCLAN & Mental health Act
Commission.
33 Mental Health Act Commission (2001) Ninth Biennial Report 1999–2001, London: Stationery OYce. Chapter 6.26. At the
time of writing the independent inquiry into Mr Bennett’s death is preparing its report. The MHAC gave evidence to that
enquiry, thus retaining its involvement and close interest in the case.
34 Department of Health (2002) Mental Health Policy Implementation Guide: Adulty acute Inpatient Care Provision.
35 Department of Health (2002) Mental Health Policy Implementation Guide: National Minimum Standards for General Adult
Services in Psychiatric Intensive Care Units (PICU) and Low Secure Units. Paragraph 9.2.1.
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Ev 40 Joint Committee on Human Rights: Evidence

5.3.5 The Commission recommends that services enhance minimum standards set by Department of
Health guidance by adopting the recommendation from Engaging and Changing that, alongside an
establishment’s anti-bullying or general harassment policies, which should include racial harassment in
their scope,
“. . . in a mental health setting, a separate section or stand alone policy aimed at protecting patients
from racial harassment by other patients, by visitors or by staV should be established to
acknowledge the special need for protection of these patients. A clear definition of racial
harassment should appear on the policy, encompassing the continuum of behaviours including
forms of subtle racism.”36

Other patient-to-patient bullying or intimidation


5.3.6 We hope that eVective policies that provide appropriate service responses to sexual or racial
harassment of patients in inpatient surroundings will foster a wider culture of zero tolerance towards any
such patient-to-patient bullying where staV intervention does not stigmatise or isolate the victim. The
Commission is aware, for example, of some inner-city wards where patients are likely to be pressurised into
buying illegal drugs from other patients, and has recently been informed of such an occurrence where the
patient concerned was a minor.

Illicit Drug cultures within psychiatric hospitals


5.4 The culture of illicit drugs in some psychiatric inpatient units clearly poses a threat to the care and
treatment of all patients resident within those units, particularly where, as we believe is often the case,
vulnerable patients are exploited by drug-dealers, whether the latter are fellow-patients or persons from
outside the unit (see 5.3.6. above). It is diYcult to over-emphasise the distress to patients and relatives, and
the demoralisation of mental health staV, caused by involuntary admissions to wards that pose such dangers.

Unregulated use of control and restraint techniques, including seclusion practice


5.5 Restraint is widely practiced across mental health services that detain patients under the 1983 Act.
The Code of Practice (Chapter 19) provides a substantial list of general preventive measures that hospital
managers and staV can take to reduce problem behaviour on wards and thus reduce incidences of control
and restraint. Although managers must attend to issues of safety in using restraint, it is also imperative that
they consider these issues so as to avoid aggressively coercive practice where possible37.
5.6 There are clear dangers inherent in the use of restraint, as exemplified by the death of David Bennett
(see 5.3.4 above). The particular dangers of positional asphyxiation in psychiatric patients may be enhanced
by side eVects of medication; excited delirium, prolonged struggle or exhaustion; and obesity or underlying
ill health38. It is therefore important that patients’ previous histories are well established when they are
deemed at risk of requiring restraint. The dangers of seclusion are less self-evident, although the Commission
is currently investigating the death of a patient whilst in seclusion in a high security hospital, and the
Commission’s 1995 report noted a death of a young woman patient whilst in seclusion. Both of these deaths
appear to be related to the emergency administration of psychiatric drugs to the patient in seclusion.
5.7 Patients frequently react to seclusion and restraint episodes with anger and a sense of injustice, often
refusing to accept the justification of the intervention after the event. Restraint episodes can be particularly
distressing for patients who have suVered sexual or physical abuse and staV should be aware of such issues
through patients’ care-plans regarding restraint practice. It is important that patients are told as much as
possible of the reasons for their restraint and/or seclusion during the intervention itself, provided with care
and support immediately after an incident39, and that the requirements of the Code of Practice regarding
post-incident visits to the patient to talk about the incident and ascertain any complaints are met.
5.8 The Code of Practice requires the use of restraint to be recorded in various ways: individual patients’
care-plans should state under what circumstances physical restraint should be used, what form it will take
and how it will be reviewed. All episodes of such restraint should be carefully documented and reviewed.
Reasons for decisions to allow physical restraint in any care-plan, and for each episode of physical restraint
that takes place, should be carefully recorded in the patient’s notes. The Commission recommends that
policies dealing with practice issues where restraint may be used, such as policies on holding powers under
sections 4, 5 or 136, should explicitly state the need for records to be made of any physical restraint.

36 Department of Health (2003) Engaging and Changing: Developing eVective policy for the care and treatment of Black and
minority ethnic detained patients. (ibid). p 5.
37 The Commission acknowledges that Government guidance already is available, although this has limited application to the
care of the majority of detained patients: see Department of Health and Department of Education & Skills (2002) Guidance
for restrictive physical interventions: how to provide safe services for people with learning disability & Autistic Spectrum Disorder.
Available from www.dohgov.uk/qualityprotects/index.htm.
38 See also Police Complaints Authority (2003) Safer Restraint: Report of the conference held in April 2002 at Church House,
Westminster, London: PCA. www.pca.gov.uk. pp 10–12.
39 Mental Health Act Commission (2001) Ninth Biennial report 1999–2001. London: Stationery OYce, Recommendation 44.
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Joint Committee on Human Rights: Evidence Ev 41

5.9 In our Ninth Biennial Report we recommended that all services should ensure that each use of C&R
is immediately reviewed, with regular audits to ensure that management and training lessons are learnt. The
apparent slow take-up of the Commission suggestions appear to us to indicate further the need for statutory
regulation. We have argued for the passing of new legislation to be taken as an opportunity to reconsider
and strengthen advice and practice requirements relating to seclusion and restraint. Notwithstanding the
fact that the Court of Appeal recently has given the Code of Practice greater legal weight (see paragraph 6
below), we believe that it is now appropriate to provide a framework of statutory regulation around these
important issues. Regulations could also introduce statutory documentation for episodes of seclusion and
serious restraint, both as a means of ensuring that actions and their justifications are considered and
recorded, and to direct that certain actions be undertaken through requirements to record their having taken
place. We have therefore suggested, in our responses to the consultations over the next Mental Health Act
that new mental health legislation should provide statutory requirements and, where appropriate,
limitations, in relation to the following:
— the institution, recording and monitoring of seclusion (including its duration) and time-out;
— the environment used for the purposes of seclusion;
— the provision of food and drinks and other basic amenities to patients subject to seclusion;
— the removal of clothing and/or bedding from patients subject to seclusion, and in relation to
“protective” clothing/bedding;
— the use, recording and monitoring of physical restraints and in the training of staV in such
procedures;
— the locking of wards;
— the qualifications of staV who institute the above; and
— the observation and care of patients who are at risk of self-harm or of harm to others.
5.10 The Commission is aware of ongoing work by the National Institute for Clinical Excellence (NICE)
in reviewing research relating to the use of seclusion and restraint so as to develop practice guidelines. We
look forward to the publication of NICE’s draft guidelines and good practice points and to participating in
the ensuing discussion over their final form. NICE’s consideration of good practice guidelines will be able
to draw on a raft of existing and previously issued guidelines, including:
— the current Mental Health Act Code of Practice, Chapter 19;
— the Mental Health Act Commission Ninth Biennial Report recommendations 42–45;
— the Institute of Mental Health Act Practitioners’ Policy Compendium guidance on seclusion and
restraint policies;
— the Police Complaint Authority’s Policing Acute Behavioural Disturbance, (revised March
2002)40;
— guidance on restrictive physical interventions in relation to people with learning disabilities and
autistic spectrum disorder, issued by the Department of Health and Department for Education
and Skills in July 200241;
— the resource sheets made available by the Department of Health as a part of its Zero Tolerance
campaign on managing violence in health services42;
— the Royal College of Psychiatrists’ 1998 report, The management of imminent violence: Clinical
practice guidelines to support mental health services guidance; and
— the UKCC (now the Nursing and Midwifery Council) report, The recognition, prevention and
therapeutic management of violence in mental health care, published in February 200243.
In the Commission’s view, this raft of guidance requires consolidation and oYcial sanction, so that
detailed guidance with formal status and legal weight underlies statutory regulation.

Inappropriate transportation methods used for detained patients


5.11 The Commission has been made aware of some detained patients having been transported between
hospitals, sometimes for considerable distances, inside private security company vans fitted with security
cages and barely adequate seating. In one case a patient was driven from Bristol to London (120 miles), in
another from Aintree to Darlington (140 miles). In the latter case, the van had no windows and the driver
was unable to see the patient, who had no access to toilet facilities or drinking water during the non-stop
journey. Prior to the journey the patient had been given a high dose of Acuphase for sedation. There were
clear risks to the patient’s life in such circumstances, and we consider that such procedures, where they are

40 available from www.pca.gov.uk


41 Department of Health & Department for Education and Skills (2002) Guidance for Restrictive Physical Interventions—How
to provide safe services for people with Learning Disabilities and Autistic Spectrum Disorder. London Department of Health
July 2002.
42 www.nhs.uk/zerotolerance
43 available on www.nmc-uk.org
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Ev 42 Joint Committee on Human Rights: Evidence

allowed to occur by any detaining authority responsible for a patient, will eventually lead to a death in
custody. In the case described, the detaining authority accepted the Commission’s representation that such
arrangements were unacceptable and has changed them.
5.12 The Mental Health Act Code of Practice (Chapter 11) provides guidance on the conveyance of
patients which could be strengthened under the next Mental Health Act. It may be that, following the 2003
Court of Appeal judgment discussed at paragraph 8 below, practices that fall short of the requirements of
Code without good reason would already be found to be unlawful on human rights grounds.

Police intervention on psychiatric wards


5.13 Situations may arise where nursing staV require the help of the police to control or resolve incidents
in hospital environments. In our Fifth Biennial Report (1993) we expressed our concern at police
involvement in clinical situations, following reports of police being called to assist in giving forcible
medication44. We continue to hear of such practices, which are surely an indictment of staYng and staV-
training levels on the hospital wards concerned.

The use in emergencies of psychiatric medication with insuYcient supervision or protocols


5.14 In the Commission’s report Deaths of Detained Patients (December 1995), we noted, over the period
1/4/92 to 31/3/94, 10 deaths of detained patients that were secondary to prescribed medication45. Of these,
one occurred whilst a patient was in seclusion and one whilst the patient was being physically restrained by
staV. The report noted that:
The overall impression from the inquest reports was of inexperienced nurses and trainee doctors
attempting to control a diYcult and potentially dangerous patient outside of normal working hours without
suYcient help and supervision46.
We recommended that:
— all sudden deaths where prescribed medication or a health care intervention could have played a
causal role in the death should be the subject of an internal review and multi-disciplinary
audit47; and
— every unit should have an agreed clinical protocol which would include a medication schedule for
rapid tranquilisation and guidance on how and when to ensure that senior nurse specialists and
consultant psychiatrists are involved in the care of diYcult patients out of hours48.
5.15 In our evidence to the on-going David Bennett Inquiry, the Commission pointed to the fact that
emergency medication had been administered to Mr Bennett on the apparent authority of a nurse during
the control and restraint episode in which he died. The on-call doctor had not yet arrived at the scene.
Medication had therefore been administered outside of the authority of the 1983 Act, which does not allow
nursing staV to authorise medication without consent, even in an emergency.
5.16 Whilst section 62 of the Mental Health Act 1983 allows for treatment that would normally require
the special authorisation of a Second Opinion Appointed Doctor to be given under the direction of the RMO
in an emergency, the Commission is concerned that this should not undermine safeguards to patients. In
particular, individual patients’ risk-assessments should take account of likely emergency situations and the
appropriate response, including questions of PRN medication49, so that such matters can be considered for
inclusion in SOAD authorisations. In this way, safe upper-limits to medication might be ensured.
5.17 At paragraph 11 below we note that emerging structures of service delivery may create more
frequent legal and ethical dilemmas of the kind faced by the staV involved in the incident during which David
Bennett died. The 1983 Act’s and Code of Practice’s procedural requirements for some emergency
interventions, such as that emergency treatment should be given under the direction of the RMO, or that a
doctor must attend seclusion episodes, may be impossible to meet given the staYng of some units. Yet, by
definition, in a genuine emergency, some sort of intervention is required and staV may be held accountable
for failing to take appropriate action. We recognise this as an issue that requires Government consideration
(not least in the formulation of the next Act, which shall, we trust, seek to enhance rather than lessen
safeguards for patients). In our Tenth Biennial report, we will be suggesting to the Secretary of State that
limitations on the use of restraint practices and seclusion in non-medical staVed units might be justified on

44 Mental Health Act Commission (1993) Fifth Biennial Report 1991–93. London: Stationery OYce, Chapter 3.5(f).
45 Banerjee S, Bingley W and Murphy E (1995) Deaths of Detained Patients: A Review of reports to the Mental Health Act
Commission. (ibid) p 19.
46 ibid, p 28.
47 ibid, p 30.
48 ibid, p 28.
49 ie Pro Re Nata (PRN)—as required.
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Joint Committee on Human Rights: Evidence Ev 43

safety grounds50. We consider there to be an even stronger case for non-medical staVed units to have strict
policies against the giving of medication outside of limits authorised, even in an emergency, given the very
great risks to patients that such practices can entail.

Dangers in ward environments: ligature points and other opportunities for suicide
5.18 Many hospitals’ physical estates provide a number of hazards to patients who are at risk of self-harm
or suicide. Government has recognised this and has, for instance, issued guidance on and a target for the
removal of ligature points such as non-collapsible shower rails and hanging rails within wardrobes51. In its
2001 report on patient deaths, and in its Ninth Biennial Report of the same year, the Commission
highlighted the dangers of self-strangulation rather than hanging as a method of suicide and suggested that
attention must be given to a wider range of potential ligature points and hazards than had been identified
in Government guidance. Commissioners continue to draw attention to weight-bearing ligature points in
many services, including some that should now have been eliminated following Government guidance. The
Commission has also called for staV training to take account of its findings relating to patient deaths, so that
staV observing patients are aware of the dangers of self-strangulation and staV are trained in appropriate
resuscitation techniques. In some older establishments, including, for example, Broadmoor Hospital,
observation itself can be impeded by the physical layout of wards. This raises real concerns over patient
safety.

Leave and absence without leave as opportunities for suicide


5.19 In our Ninth Biennial Report we stated that one in five detained patient deaths occurs whilst a
patient is on authorised leave from hospital. One third of deaths of detained patients by suicide occurred
whilst the patient was absent from hospital without leave52. Patients’ care plans should therefore pay
particular attention to the risks of leave and absence without leave with regard to every individual patient.
It is likely that, in areas where bed-occupancy is over 100%, doctors are faced with diYcult decisions as to
which patients should be sent away on leave to free spaces, and may be forced to take more risks in granting
leave than they would otherwise consider reasonable (see paragraphs 5.1–2 above). The Commission has
also heard of patients being sent on leave from wards as a response to staYng shortages.

Prisons
5.20 The Commission’s remit does not extend to prisons, although prisoners who are transferred to
hospital under the 1983 Act fall within our purview. The Commission is extremely concerned that such
transfers may often be delayed under present conditions, and that services available to seriously mentally
disordered prisoners within prison are inadequate. Many prisoners awaiting transfer will be kept in physical
isolation that is quite deleterious to their mental condition, with inadequate medical intervention. As a
result, some prisoners are diYcult to manage upon transfer and may experience further episodes of seclusion
even when transferred to high secure services. The Commission is also concerned that no specialist
monitoring protection is extended to prisoners undergoing treatment and/or care for mental disorder. It is
beyond the Commission’s scope to investigate how such prison-based care for the mentally disordered
relates to deaths within prison, but we feel that such a study could be usefully undertaken.

III. The Role of Human Rights-based Approaches in Preventing Detained Patients’ Deaths

The place of human rights in patient safety


6. The Commission views as incontrovertible that human rights based approaches to the detention and
care of psychiatric patients can play an essential role in preventing patient deaths. Clearly, emphasis on
patient’s right to life (Article 2) is of primary importance in healthcare interventions which involve the
compulsion of vulnerable patients. Although Article 3 protections against inhuman or degrading treatment
are very broadly drawn under existing case law, in conjunction with Article 8 rights to respect for physical
integrity these have provided a lever for legal challenge to practices where patients have felt their rights to
have been abused.
7. The Human Rights Act 1998 did not, however, only bring the lever of legal challenge closer to patients
and their representatives. It also created a duty on all public authorities to operate their powers according
to ECHR principles. The Commission notes the Joint Committee on Human Rights’ own concerns that this
aspect of the 1998 Act has only partially been implemented, and that “the high-water mark has been

50 Mental Health Act Commission (in press) Placed Amongst Strangers: Twenty years of Mental Health Act 193 and future
prospects for Psychiatric Compulsion. Tenth Biennial Report 2001–03. London, Stationery OYce. Publication due in
December 2003.
51 Department of Health (2001) Building a Safer NHS for Patients: implementing An Organisation with a Memory. London:
Stationery OYce p 54.
52 See Mental Health Act Commission. (2001) Ninth Biennial Report, paragraphs 4.23, 4.26 and Appendix B.
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Ev 44 Joint Committee on Human Rights: Evidence

passed”53. The Commission will be highlighting this concern alongside its own observations in its Tenth
Biennial Report to the Secretary of State, published in December 2003. The Commission notes that the
thrust of Government policy appears to be that health and social authorities should become more locally
accountable, and that this implies a lessening of prescriptive guidance from central government. We agree
with the aim of encouraging nursing and other professional leadership, and the fostering of grassroots
pioneers in local services to revitalise the notion of human rights as positive entitlements that are considered
on a day-to-day level in service development. But, particularly in relation to the restriction of fundamental
human rights as a health or safety measure on the authority of the State, the Commission views any
divestiture of responsibility by Government as inappropriate, both in legal terms and in a wider ethical sense.
For practitioners to attain the confidence to move beyond a defensive approach to human rights they must
have the support of adequate and authoritative guidance on legal and practice issues. The Commission
believes it to be the task of Government to provide authoritative guidance on the law and requirements of
good practice relating to the compulsion of psychiatric patients. We are therefore pleased that the Court of
Appeal took a similar view in the Munjaz case, which underlined the States’ general responsibility for the
treatment of those whom it has deprived of their liberty, and which we discuss below.

The Mental Health Act Code of Practice and human rights legislation
8. In the Munjaz judgment of 2003, the Court of Appeal has stated that the Mental Health Act Code of
Practice is one of the positive steps that the State takes to protect the health and rights of persons deprived
of liberty54. In part, this means that the State is responsible for ensuring that authorities exercising its powers
do so in accordance with human rights principles55, and the Code is a tool that it uses to meet this obligation.
The Code can provide transparency and predictability where ECHR compliance requires this but the law
is insuYciently defined56. The Code therefore should be aVorded a status consistent with its purpose: “the
State should therefore give it some teeth”57. The Commission’s analysis of the Munjaz judgment is given
below.

Seclusion, the ECHR and the Code of Practice following R (on the application of Colonel
Munjaz) v Mersey Care NHS Trust and others; and S v Airedale NHS Trust and others [2003]
(a) Seclusion itself is not a violation of patient’s rights to protection from inhuman or degrading
treatment under ECHR Article 3, although used improperly or with little regard to the patient’s welfare, it
could become so [paragraphs 53–55].
(b) Seclusion, by denying association and placing a patient under close surveillance, is necessarily an
interference with the right to respect for private life, but one that may be justifiable under ECHR Article 8(2).
To be so justified it must be operated predictably and transparently within limits set by domestic law [65].
(c) The State is under an obligation:
(i) “to know enough about its patient to provide eVective protection” [58]; and
(ii) to ensure that other public authorities act compatibly with the ECHR [59].
(d) The Code of Practice is one essential means by which the State undertakes its duty at 3(ii) above in
respect of detention and treatment of patients under the MHA 1983. The Code of Practice:
(i) can provide transparency and predictability where ECHR compliance requires this but the law is
insuYciently defined [65, 74]; and
(ii) should be aVorded a status consistent with its purpose [60, 71–6].
(e) The Code should therefore be observed by all hospitals unless there is a good reason for particular
departures in relation to individual patients. It is not acceptable to depart from the Code as a matter of
policy, although policies may identify circumstances when such departures might be considered on a case-
by-case basis [76].
(f) Seclusion that is not practiced in accordance with the Code’s definition and requirements, unless it can
be justified as necessary in an individual patient’s case, will not meet the requirement of legality set by the
ECHR. Policies that depart from the Code’s guidance on an arbitrary basis may be similarly unlawful
[74, 76–7].
(g) Whilst seclusion of a patient who is already detained does not engage ECHR rights to liberty under
Article 5, the process of detention itself clearly does so. Where the Code deals with the processes of detention,
adherence to its guidance is similarly an ECHR requirement for the hospital’s policy or actions to be lawful,
unless a departure from the Code’s guidance can be shown to have been necessary in a particular case [70,74].

53 Joint Committee on Human Rights (2003) The Case for a Human Rights Commission: Sixth Report of Session 2002–03,
Volume 1. HL Paper 67-I, HC 489-I. London, The Stationery OYce, March 2003. Pp 6–7.
54 R (on the application of Colonel Munjaz) v Mersey Care NHS Trust and (i) Secretary of State for Health and (ii) MIND; S
v Airedale NHS Trust (i) the and Secretary of State for Health and (ii) MIND [2003].
55 ibid, paragraphs 59–60.
56 ibid, paragraphs 65, 74.
57 ibid, paragraph 56.
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Joint Committee on Human Rights: Evidence Ev 45

(h) It is therefore possible for a hospital’s actions or policies to be in unlawful breach of the Mental Health
Act Code of Practice on issues that engage ECHR issues [77].
9. We hope that Government will now reconsider its approach towards Codes of Practice in mental
health legislation, and ensure that they are given a clear status under statute that reflects the position reached
through judicial challenge. Both the draft Mental Health Bill of 2002 (clause 1) and the Mental Incapacity
Bill (clause 30) provide only that professionals must “have regard to” the respective Codes of Practice. We
believe that this reflects a legal position pre-Munjaz, and that more emphatic language would now be
appropriate. This is not to say that we want the Code necessarily to be statutorily binding on authorities
where there are good reasons for departure from its guidance based upon an individual’s situation. If
authorities are to be forced to follow the Code to the letter irrespective of circumstance then the distinction
between the Code and primary legislation would be lost. In our response to the Mental Health Legislation
Review Team (1999) we expressed our concern that providing statutory weight to a Code of Practice would
be likely to water-down its provisions until they were a set of minimum standards, rather than a guide to
good practice58. It may be that the precedent of section 7 of the Local Authority Social Services Act 1970,
which obliges social services authorities to act under the general guidance given by the Secretary of State,
could provide a model for legislation that gives a Code “teeth” in the sense required by the Court of Appeal.

Creating and maintaining a human rights focus in developing psychiatric services

10. There remains much to do to bring about a psychiatric service that fully respects human rights values.
Patients are still compelled to reside on wards that are acknowledged by those responsible for them to be
substandard, frightening and even dangerous. The majority of patients who are compelled to reside on such
wards are subject to such compulsion for reasons of their own health or safety. The Commission considers
it possible that the courts will, at some point, accept a human rights-based challenge to the lawfulness of
such a detention on the grounds that the services provided under compulsion have neither addressed nor
provided for the health or safety of the patient concerned.

11. The Commission understands and welcomes the apparent intention of Government to make mental
health care “a little less institutional and a little more diverse” through the provision of smaller inpatient
units with closer links to the community59. It is easy to see how such a service could solve some of the most
obvious problems inherent in acute inpatient care as presently organised and as discussed at paragraphs
5.1–5.4 above. There are, however, particular and perhaps obvious risks inherent in having physically
decentralised structures of smaller inpatient units operating powers of compulsion on behalf of the State.
One such risk is the spreading of available medical and other expertise too thinly, so that no inpatient units
could realistically have immediate access to a doctor when emergencies arise. Where patients are detained
for their own safety, this may raise a similar ethical and potential legal dilemma to that faced by mental
health professionals whose admission wards fall below acceptable standards under the current system.
Similar issues relating to economies of scale pose other challenges. StaV who are given powers of coercion
(and the responsibilities that go with such powers, from using them appropriately to being held accountable
when things go wrong) must of course be allowed appropriate resources, human and otherwise, to carry
them out eVectively. For example, Mental Health NHS Trusts and large Independent Hospitals usually now
employ a Mental Health Act administrator to ensure that legal powers and duties of compulsion are
operated and documented correctly. Where such employees establish an eVective foothold within their
organisation, their work can have marked benefits for the treatment and safety of patients. Although it is
perhaps likely that some shared managerial structures, such as the increasingly large NHS Trusts of today,
will allow for such posts to continue, isolated units may not have suYcient resources.

12. A less obvious risk of decentralised structures, and indeed the potential converse of positive attempts
to make the provision of mental health services “patient-centred”, is what a “less institutional” framework
could mean for the practice of compulsion. The danger of emphasising the need for less formal structures
of care is that these may disguise or detract from underlying realities of coercion. The Commission has, in
previous submissions to the JCHR, expressed our concern over patients who, under current mental health
legislation, are de facto detained in hospitals with none of the protections of the law, including our oversight
and monitoring. We have similar concerns that, under envisaged structures of mental health care, and in the
absence of suYcient central guidance and monitoring, laudable aims of less formality with greater
immediacy of response and availability of appropriate care could lead, in practice, to the casual and
unregulated application of powers of coercion. We believe that this would increase the dangers to patients,
not only of arbitrary and unfair interference with their rights, but of dangerous or potentially abusive
practice.

58 Mental Health Act Commission (1999) The Mental Health Act Commission. Submission to the Mental Health Legislation
Review Team, Jan 99, p 10.
59 Professor Louis Appleby (National Director for Mental Health) giving evidence to the David Bennett inquiry [2003]. Inquiry
transcript II.6-650.
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Ev 46 Joint Committee on Human Rights: Evidence

Regulation of specific areas of compulsion


13. The Department of Health has acknowledged that authorities treating patients under compulsion
acquire reciprocal duties to ensure that their care is provided safely and in accordance with good practice.
Whilst we would agree that “higher levels of risk [and] loss of liberty suggest a greater need for clinical audit
and monitoring than usual, with particular attention paid to areas such as: observation; seclusion; restraint
and rapid tranquillisation”60 we suggest that Government should itself seek to ensure that issues such as
seclusion and restraint are operated on its behalf in ways that are safe and appropriate. Following the
Munjaz judgment of 2003, discussed above, the Code of Practice can be used to provide practical guidance
that will be generally binding on authorities. We suggest, in addition to such guidance in a Code of Practice,
that Government should take the opportunity of new legislation to consider statutory regulation of aspects
of particularly invasive or contentious practices. Such regulation could, at the very least, institute record
keeping and reporting requirements utilising statutory documentation. It could also ensure training
standards in relation to, for example, the physical restraint of patients, and introduce safeguards in relation
to certain treatments, such as naso-gastric feeding of anorectic patients, or following rapid tranquilisation
of any patient, etc. We also suggest that core requirements regarding seclusion practice (such as particular
triggers for multidisciplinary review and particular reporting procedures) could be given unequivocal legal
force by use of secondary legislation under a new Act.

The framework of compulsion under the Draft Mental Health Bill proposals of 2002
14. Although the draft Mental Health Bill of 2002 proposed powers that would compel patients to accept
psychiatric treatment without consent in the community, it does so at the expense of existing supervisory
powers applicable to community-based patients under the 1983 Act’s Guardianship and Supervised
Discharge provisions. It seems likely that patients who are subject to these relatively weak powers of
coercion (which allow for the specification of a place of residence, access for medical and social care
professionals and for the patient to attend at certain places) could drop out of the view of authorities.
Although the numbers of patients currently subject to these powers is small (slightly less than 1,000 patients
would seem to be subject to Guardianship at any one time), it may be that the next Mental Health Act, by
replacing Guardianship and supervised discharge with powers of community treatment, will reduce the
protection for vulnerable persons in the community who do not meet the threshold for the imposition of
these more far-reaching powers. It may be that a reconsideration of a form of Guardianship under the next
Act could address the reasons for its low usage and so provide supportive supervision of patients in the
community who do not meet the criteria for non-consensual treatment.

A human rights culture in the coercion of psychiatric patients


15. In our Tenth Biennial Report61, the Commission acknowledges that a culture of human rights cannot
be imposed upon services from above, but that Government nevertheless has an important role in
establishing the boundaries within which services work. By establishing such ground-rules, and by doing so
with a particular regard to human rights issues, Government can at least partially fulfill its obligation to
ensure that powers used in its name are implemented in accordance with principles of the European
Convention.
16. In our view, the safety of patients similarly cannot be imposed through increased physical safety
measures without an equal emphasis on “relational security”. Relational security “begins with the patient
and is essentially concerned with detailed knowledge of the patients and their situation it will extend to
relationships and professional agencies outside the hospital, so that although the institutional boundaries
are very definite, eVective security can often have its roots in the community. The provision of education,
rehabilitation and pastoral facilities as well as leisure and social activities all have an important part to
play”62. Relational security is therefore grounded on the fair and decent treatment of patients, which is best
assured by a human rights-based approach that is vigilant towards potentially dehumanising or infantilising
aspects of care under compulsion. Whilst, therefore, the Commission has particular concerns over those
aspects of mental health care outlined above as causative factors in patient deaths, to really improve
patients’ experiences of safe and supportive care these concerns must be addressed within a holistic, human-
rights based approach to all aspects of mental healthcare.
15 September 2003

60 Department of Health (2002) Mental Health Policy Implementation Guide: National Minimum Standards for General Adult
Services in Psychiatric Intensive Care Units (PICU) and Low Secure Units. Paragraph 13.3.1.
61 See note 50 above. The Commission’s Tenth Biennial Report was in press at the time of this submission.
62 Kinsley, J (1992) Security in the Special Hospitals—a Special Task. Published as Annex F of Department of Health (1994)
Report of the Working Group on High Security and Related Psychiatric Provision [the Reed report]. London, Department of
Health.
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Joint Committee on Human Rights: Evidence Ev 47

6. Memorandum from The Police Complaints Authority

1. Introduction
(i) The Police Complaints Authority submits this memorandum of evidence to the Committee to which
is attached an Appendix comprising a research paper supplied to it by Dr David Best, Head of Research,
Police Complaints Authority. This memorandum will outline the role and responsibilities of the Police
Complaints Authority, will summarise research and reporting published by the Police Complaints
Authority during the past five years on matters material to the inquiry and will oVer further observations
in response to the questions posed by the inquiry. The Research Appendix provides detailed data on fatal
incidents.
(ii) The Police Complaints Authority, having 18 members (full-time and part-time) and approximately 70
staV (largely seconded civil servants but some permanent staV) has two principal roles under the legislation
governing its activity, the Police Act 1996. Firstly, it supervises police investigations into complaints alleging
serious misconduct or incidents causing public concern. Approximately 350–400 investigations are subject
to supervision at any one time. The police service is required under legislation to refer certain matters to the
Authority. It has the power to refer incidents not subject to complaint to the Authority and most fatal
incidents are referred in this way with investigations in the majority of cases being accepted for supervision
by the Authority. The supervising member has the power to approve, or withhold approval of the
appointment of the investigating oYcer where a matter is supervised; may issue directions as to the conduct
of the investigation; and must issue a statement at its conclusion stating whether the investigation was, or
was not, conducted to the Authority’s satisfaction.
(iii) The Authority’s second principal role is, at the conclusion of all investigations, to undertake an
independent review of the evidence to determine whether any police oYcer should have his/her conduct
referred to a misconduct hearing. All matters supervised by the Authority, whether or not a public complaint
was made about the conduct of any police oYcer, has to be reviewed and the Authority has the same legal
powers to direct formal disciplinary action as it would in a case of a public “complaint”.
(iv) The Authority’s supervisory function is governed by an internal manual of practice agreed with and
circulated to individual police services. This manual provides detailed guidance to Authority members, staV
and the police service on referrals and initial action; discharging the responsibilities of ongoing supervision;
standards expected of those investigations subject to the Authority’s supervision; family liaison and
community relations and the disclosure of information or evidence to complainants, next of kin or in the
public domain during or after the supervision of an investigation.
(v) Prior to September 2001, the Authority had no dedicated research capacity but since 1998 had
undertaken some specific research work relevant to the remit of the inquiry which will be summarised below.
(vi) The Authority has operated from a single central London oYce with Authority members and
caseworkers having responsibility for a range of diVerent police services. The statutory powers of the
Authority do not include the power to inspect police facilities or management arrangements governing the
detention of those in custody. However Authority members will, in their contacts with police staV and
investigators, gain some local knowledge and understanding of custody arrangements material to the
investigations they supervise or review and finalise. Based on the information and impressions gained by
this casework experience, observations are oVered both in Reports and in the following observations and
impressions.

2. Observations and Lessons Emerging from PCA Annual Reports 1997–98 to Date

(i) 1997–98 Annual Report


The report noted that police service practice in relation to referral of cases for voluntary supervision had
improved and that virtually all deaths in custody were now subject to Authority supervised investigation.
The report stated that the Authority’s experience suggested some deaths could have been avoided if more
eVective procedures and safeguards had been in place and it focused on two key individuals in the process,
namely the custody oYcer and the forensic medical examiner. The Authority summarised the findings of a
survey into custody oYcer training which indicated that most police services provided dedicated custody
oYcer training. However only seven required the successful completion of such a course before a custody
oYcer took up his/her duties. In approximately one third of all police forces in England and Wales, custody
oYcers generally did not receive specialist training until after they had taken up their duties and in some
cases such training might be delayed for months or even years. A telephone survey of 620 custody oYcers
in 401 custody suites covering all forces suggested that at any one time, some 23% were carrying out their
complex and demanding duties without having had the benefit of specialist training. The Authority stressed
the need for training to be provided before custody oYcers took up their duties at all and such training
should enable them to recognise danger signals amongst those appearing to be drunk, those who might be
at risk of attempting suicide or those who might be suVering from a potentially dangerous medical
condition. The Authority also highlighted the need for:
— ensuring that custody oYcers received appropriate support and supervision;
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Ev 48 Joint Committee on Human Rights: Evidence

— encouraging better communication between custody oYcers and forensic medical examiners;
— introducing a standard practice during the presentation and booking in process to identify those
detained persons who might be at risk of suicide or self-harm;
— introducing a simple method of monitoring the consciousness of detained persons;
— extending CCTV systems to cover observation cells for particularly vulnerable detainees and
developing appropriate guidelines to protect the dignity of those concerned;
— establishing detoxification centres to deal with people arrested for alcohol or drug abuse; and
— improving cell design to reduce suicide risks; providing appropriate specialist training for all
forensic medical examiners and considering centralised custody suites and a specialised custody
service.
In October 1998 the Police Complaints Authority organised a special one-day conference entitled “Deaths
in Police Custody: Reducing the Risks” to ensure that these essential recommendations were understood by
relevant police managers and Police Authorities and their implementation taken forward.
As a result of the conference, a research and policy paper “Deaths in Police Custody: Reducing the Risks”
was published by the Authority in 1999. This report analysed deaths in custody cases from 1994–98 and
highlighted where the Authority’s supervision experience indicated deaths occurring in circumstances
previously seen. The Authority highlighted, a relation to the risk of harm or death from suicide, the
importance of reducing risks by the removal of ligature points; and the removal of clothing which may pose
a risk. The report made 16 detailed recommendations calling for the revision of Code C, Police and Criminal
Evidence Act Codes of Practice, to clarify the requirement to rouse drunken detainees; practice by custody
staV in regard to rousing and recording their actions. The Authority felt consideration should be given to
including in the Codes of Practice a specific requirement for custody staV to make regular checks on
detainees suVering from drug abuse. The report repeated recommendations made earlier concerning
specialist training for custody oYcers and police surgeons together with the introduction of new procedures
to improve risk assessment practice. The Authority in its report called for a nationwide programme of cell
modernisation designed to reduce the risk of self harm and accidents and asked the Home OYce to consider
amending the statutory requirements to enable some procedures in custody suites to be carried out by
suitably qualified health care professionals other than doctors. The Authority felt that police forces should
consider concentrating custody operations in a small number of specialist centres and should examine the
benefits of establishing a custody service as a specialist unit. The Authority repeated the calls previously
made that the case for abolishing the criminal oVence of being drunk and incapable should be re-examined
and called for further examination as to the feasibility of appropriate alternatives to police custody including
reception centres and detoxification centres for those suVering from substance abuse. The Authority called,
also, for police oYcers to be given refresher training in the safe use of force in self defence and to aVect arrests
given the risks associated with the use of restraint.

(ii) 1998–99 Annual Report


In its report for this year, the Authority reported that in the previous four years an upward trend in the
number of deaths in police custody cases supervised by the Authority had been seen, culminating in 65 cases
that year, 41% more than in 1995–96. The year had seen the largest number of deaths in police care or
custody on record. Deaths from self harm, the eVects of alcohol or drugs and from identified medical
conditions were the causes of the great majority of such deaths. In that year, 18 people appeared to have
caused their own death while in custody representing a rise from a total of seven in 1996–97.
The report repeated previous recommendations for change and in addition recommended that at risk
detainees, (identified at booking-in, from the police national computer or elsewhere) be kept under constant
supervision using CCTV or civilian staV until their mental state had been fully assessed; in urban centres
appropriately trained nurses to be on call to the police to undertake assessments, liaise with psychiatrists
and advise police surgeons and custody sergeants as appropriate; forensic medical examiners be required to
train to the standards set by the Association of Police Surgeons.
Revision to Code C to require the police to visit and rouse on a regular basis any detainee who may have
taken a class A drug; training for forensic medical examiners to ensure that clear oral and written guidance
is provided for custody oYcers; including the results of assessments and symptoms to be monitored with
indicators of risk and actions to take when needed; a simple consciousness scale to be adopted by forensic
medical examiners and custody oYcers to enable clear communication to take place about the welfare of
vulnerable detained persons over the period of their detention; and specific training for custody oYcers on
the care of detainees who appear to have used alcohol or drugs in order to provide them with information
concerning the potentially life-threatening conditions which may generate an appearance of drunkenness.
The report reminded the police service of the need for high standards of management in custody areas
and the need for regular spot checks in such facilities to ensure that force orders, police guidance and codes
of practice were being followed.
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Joint Committee on Human Rights: Evidence Ev 49

The Authority in this Annual Report repeated its call for the decriminalisation of being drunk and
incapable. The Authority considered such an action would immediately crystallise the need for care in
reception centres for those grossly intoxicated, staVed by nurses and paramedics. Such establishments would
meet the immediate overnight needs of people found incapable in a public place. The longer terms needs of
those suVering the eVects of alcohol dependency could only be met through the establishment of
detoxification centres, again staVed by professionals.

(iii) Annual Report 1999–2000

This report noted a fall in the number of those who had died in police care or custody and there was a
decline by a third in the number of deaths due to self-harm from the previous year. The report highlighted
the impact of a pilot in Devon and Cornwall Constabulary of “in-cell” CCTV. During 1999 the Authority
published a follow-up report to its earlier one “Deaths in Police Custody—Reducing the Risks”. The report
provided the detailed results of a questionnaire survey to police forces in England and Wales assessing the
response made by the police service to each of the recommendations appearing in the Authority’s earlier
report. Action taken by each police service responding to the Authority’s survey was described in this report
highlighting good practice developments. The Authority drew particular attention to the importance of the
use of CCTV to monitor the risk of harm to detained persons in custody; the improvement of ventilation
in cells since cell hatches had to remain closed. The Authority called for a cost-benefit analysis of using
trained nurses and community psychiatric nurses in custody areas. The report recommended that police
services consider establishing custody users groups and it repeated a call previously made on a number of
occasions for the introduction of the Association of Police Surgeons’ medical form as standard throughout
the police service.

(iv) Annual Report 2000–01

It was reported that deaths in police care or custody in this year fell sharply to 32, the lowest number of
such deaths since 1993. Deaths in cells or police stations numbered 16 compared with 19 in the previous
year. In 2000–01 the Authority reported that only two cell deaths appeared to be due to self-harm, one sixth
of the total of two years previously. The Authority drew particular attention in this Annual Report to deaths
due to restraint and the importance of improving inter-agency co-operation and practice in regard to the
treatment of persons detained or under arrest who have mental health problems. Issues in relation to
restraint were discussed at a seminar which included international and UK experts on forensic pathology
and accident and emergency medicine. As a result of the conference the Authority published a guidance note
for police oYcers, forensic medical examiners and other treating physicians concerning the management of
acute behavioural disturbance and the special risks of positional asphyxia. Detailed guidance was also
included to forensic pathologists undertaking the pathological examination post mortem of a person
suspected to have died following such a disturbance.
The report noted that recent deaths in custody had exposed weaknesses concerning the collaboration
between NHS Mental Health Trusts and the police service. The report noted that responses to the arrest by
police of persons under Section 136 Mental Health Act needed to improve so that such persons could be
taken immediately to a designated hospital and not to a police cell and NHS Trusts would need to staV a
Section 136 reception room which could be attached to accident and emergency departments; NHS Trusts
and police services also needed to agree a written protocol for the handover from police to medical staV of
Section 136 patients on arrival at the hospital and Trusts with responsibility for detailed psychiatric patients
and the police needed to agree clear written protocols to clarify the respective responsibilities of hospital
staV and the police for returning to hospital detained patients who were absent without leave.

(v) Annual Report 2001–02

In this year a small rise from 32 to 36 investigations into persons who had died in police care or custody
was noted. This was still less than that recorded in each of the preceding five years. The report highlighted
developments by the Home OYce on the provision to custody of health care professionals. The Authority
expressed a hope that the revision of PACE Codes of Practice would adopt recommendations made by the
Authority to enhance the eVectiveness of the duty to rouse intoxicated detainees. The Authority’s report
drew attention to the need for appropriate police practice for dealing with a suspect who is thought to have
swallowed drugs. The report emphasised the need for the police service to raise its performance in dealing
with such circumstances to reduce the risk to life to a minimum. The report commended an MPS standing
order requiring that in every case someone who is thought to have swallowed drugs must be taken to hospital
for an emergency examination.
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Ev 50 Joint Committee on Human Rights: Evidence

(vi) Annual Report 2002–03


This report showed that the Authority supervised 14 investigations into deaths occurring in a police cell
or police station. Medical causes and the eVect of alcohol and/or drugs remained the most prevalent
apparent cause of death. In detailed analysis providing observations on causes and prevention strategies,
the report noted that despite improved training for custody staV and eVorts to make cells safer, some
investigations revealed concerns which underlined the need for constant vigilance and greater eVorts to
publicise the dangers posed by alcohol, drugs or the risk of self-harm. The Authority recorded its
disappointment that some police services still lacked CCTV cameras in their custody areas and that
insuYciently urgent consideration was given to the removal of ligature points in cells to reduce the risk of cell
hangings. The Authority reported that many deaths of drunken detainees were preventable if rapid medical
assessment was provided and individuals were transferred to hospital. The report repeated that drunken
detainees were in danger from alcohol poisoning and serious head injury masked by their intoxication. The
management of drunken detainees, it was accepted, is a stressful and resource sapping activity for the police
service but the Authority is concerned that, while custody staV generally recognise the symptoms of excess
alcohol, there is much less awareness of the symptoms and dangers of alcohol withdrawal or the combined
eVects of alcohol and illicit drugs.
The report referred to a PCA study into the risks of detaining alcohol impaired people in custody suites
carried out in the MPS which suggested that, while custody oYcers know they are accountable for the health
and welfare of all detainees in their care, they do not feel that they are properly resourced or supported in
this task. The research noted a general dissatisfaction with current training arrangements, including the role
specific training for staV working as gaolers and with the initial custody oYcer course in relation to
alcohol issues.
The study also raised questions about forensic medical examiners who it was felt may lack specific training
in managing alcohol-related problems and may also be reluctant to get too close to potentially dangerous
individuals.
Drug misuse remained a significant factor in deaths in police custody or following police contact and
typically the report showed that these arose from attempts by detainees to swallow the evidence when
confronted by police. Arresting oYcers might not be aware of these attempts and a detained person might
not be showing symptoms of drug abuse. For some drugs, if the symptoms of overdose were recognised early
then medical interventions can prevent a death; for others such as cocaine this may not be possible.
The report highlighted its findings in a very recent PCA study “Drug Related Deaths in Police Custody”
which noted that even when a detainee who later died reported symptoms of medical distress, police oYcers
initially believed that the illness was being feigned. The study highlighted important learning points with
regard to the training of police oYcers in both drug awareness issues and in providing emergency first aid;
in the need for the development of policies for the management of drug intoxicated individuals and for the
use of medical expertise in police custody. The study highlighted that the increased prevalence of drug use
nationally and within arrested populations would suggest an increase in the prevalence of drug related
custodial fatalities.
In April 2002 the Police Complaints Authority held a national conference to raise and consider issues
concerning the safe use of restraint in custodial settings. Detailed recommendations emerged from the
conference as to measures which would prevent or reduce the incidence of restraint-related deaths. Detailed
recommendations also emerged as to the standards to be employed in investigating restraint-related deaths
and, in particular, the relationship between investigators, the public body where death has occurred and
bereaved families.

(vii) Other reports


The Authority has published three other reports on policing practice and performance relevant to the
Inquiry. In 1998 a short report on the police use of new batons was published comparing the impact of
diVerent equipment provided in police services in England and Wales. It was noted that the rigid side-
handled baton had led to most complaints though the Authority’s limited study could not determine why
this should be the case. It appeared that the skills required to make full use of the PR24 baton were
considerable and it may be that training needed to be carefully geared to the skills of the oYcer and probably
needed to be undertaken more frequently than was necessary with other equipment.
The Authority in 2000 published a more in depth research report on the use of CS spray and its impact
on the public. The report concluded that CS incapacitant spray did not appear to present a serious risk to
the public. From the sample of complaints analysed it was not possible to conclude that permanent injury
was caused by use of the spray and there was no reported fatality known to have been caused by it. The
Authority noted that the introduction of CS spray had made a significant impact on safety for police oYcers.
However, the study raised concerns amongst significant population groups, particularly those vulnerable
through mental illness, alcohol or drugs. It called for further research to be undertaken and continued
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caution in the use of the spray to be reflected in guidance and training for police oYcers. The report urged
police services to act on the guidance introduced in 1999 particularly in relation to the safe and appropriate
use of spray for those with a mental illness, its use in crowded areas, on car drivers and in relation to incidents
involving firearms. In 10 recommendations the report highlighted the need for better training of staV so as
to render practice more appropriate particularly when dealing with persons with a mental illness. Other less
safe or inappropriate uses of spray were highlighted in the recommendations. The report called for research
into alternatives to the solvent MIBK which can cause burns and blistering; the long term eVect of CS sprays
used and the eVect of the CS spray on those with mental illness and drugs associated with this.
In 2003 a major review of shootings by police in England and Wales from 1998–2001 conducted by the
Police Complaints Authority was published. Such incidents now comprise category two deaths in custody.
The review was requested by the Home OYce Minister of State and in the terms of reference the Authority
was asked to have particular regard to—
— the planning, control and conduct of operations;
— the way in which the concerns of the bereaved families were addressed and how they were kept
informed of the progress of the investigation; and
— the training and skill needs of the police oYcers involved in such operations particularly at
command level.
Twenty-four incidents were examined. The review addressed the following key questions:
— Who was shot and why? Detailed analysis and narratives show the circumstances in which shots
were fired and what had provoked this police action. The review classified the incidents as to
whether they were “spontaneous” or “pre-planned” and whether the behaviour of the person who
was shot appeared rational or irrational. In the incidents reviewed many of those shot were
vulnerable due to a combination of alcohol or illicit drug misuse and/or mental health problems.
— What were the command and practice issues, and how could these be addressed? The review
identified a number of weaknesses in command and proposed changes to strengthen, particularly,
the role of the intermediate (“silver”) command in the management of incidents. It examined the
potential impact of tactical choice on outcome and the role for approaches that take account of
the needs of vulnerable suspects.
— What were families’ concerns and how could these be met? Contact with bereaved families
uncovered poor experiences of the investigation, inquest and disciplinary processes. These were
judged to be too protracted, secret and unresponsive.
The review made 48 wide-ranging recommendations to the Home OYce and to the police service. Central
to these was the concern that lessons may not be adequately learned from firearms incidents. The discharge
of weapons by the police remains a rare event in England and Wales but the arrangements for disseminating
lessons for police forces and others remain unsatisfactory. The Authority recommended that more research
data was needed on:
— the eVective use of police dogs in firearms incidents;
— the testing and application of less lethal weapons;
— the impact of verbal challenges on suspects, particularly for vulnerable people and when suspects
are challenged from behind;
— regional variations in rates of police shootings and the relationship between the use of specific
tactics and the likelihood of discharge of police weapons; and
— the relationship between deployments and discharges, and the factors that predict when police
discharges are likely to occur.
The Home OYce has now convened a Working Group combining the PCA, ACPO, Metropolitan Police
Service, Association of Police Authorities, Metropolitan Police Authority, HMIC, Home OYce and
Department of Health to consider and, if appropriate, take forward the recommendations of the review.

(viii) Home OYce Learning the Lessons Committee


In 2002 a Standing Committee on Learning the Lessons from Adverse Incidents was convened by the
Home OYce. It is chaired by ACPO, the Authority provides the secretariat, and it has representation from
the Home OYce, HMIC, Centrex, APA, the Police Standards Unit and the Crown Prosecution Service. Its
terms of reference are to:
— review adverse incidents which occur in the police service;
— identify lessons to be learned from such incidents, with the aim of preventing similar incidents from
occurring elsewhere and developing good practice; and
— disseminate the findings and recommendations of the Committee.
The Committee also hopes to encourage a culture in which the police service, and those working with it,
are willing to share information to help each other learn from adverse incidents, rather than a culture pre-
occupied with allocating blame. Its work has already resulted in a Home OYce circular (HOC 18/2002)
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following an investigation supervised by the Police Complaints Authority into a cell death by hanging. The
guidance drew attention to the need for special vigilance by those managing custody facilities in relation to
the risks posed by the physical characteristics of the accommodation. The circular guidance also reminded
the police service of the need to balance considerations of privacy and dignity (Article 8 ECHR) against the
sometimes more important principle of preserving the right to life (Article 2 ECHR).

3. Questions Posed by the Inquiry

(i) Preventing deaths in custody

What are the main causes of the deaths in custody? Are there any common factors?
Please see detailed research evidence compiled by Dr David Best, PCA Research Department and above
comments and published reports.

Are there particular aspects of conditions of detention, or the treatment of detainees, or the cultural background
of prisoners or prison oYcers, that contribute to:

Suicide and self-harm in custody?


Suicide and self-harm is now much rarer. The Authority would draw particular attention to the continued
use by the police of custody area accommodation ill-designed for the detention of vulnerable prisoners.
Home OYce guidance issued in July 2002 drew attention to the contribution which such outmoded
accommodation made in the death due to self-harm of a detained person earlier that year. Detailed guidance
was given to the police service stressing the importance of identifying and removing physical features which
present an opportunity for use as a ligature point. Later incidents confirmed the Authority’s belief that in
the police service estate there still exist detention areas unsuited to holding vulnerable prisoners. The same
circular guidance highlighted, from the cases supervised by the PCA, the need to remove from those assessed
as at risk clothing which might be used to self-harm. The Authority has drawn attention, in its previous
reports, to the diYculties of balancing respect for personal privacy and dignity with the need to protect risks
to life and safety. Some police services adopt strict practices with regard to the removal of laces, belts and
cords. Other police services (including the Metropolitan Police Service) do not, in some cases arguing that
to insist in every case on such a measure would infringe the human rights of the person detained. This Inquiry
may need to clarify where the balance should lie in relation to human rights principles so as to encourage
greater consistency across the police service in the humane and safe detention of persons in custody.

Other deaths or injuries in custody?


Dr Best’s research study highlights the prevalence of drugs, alcohol and mental health problems amongst
those who die in police custody. The combination of these factors raises special challenges for police oYcers
without medical knowledge or training and forensic medical examiners who may have limited experience
and/or expertise in relation to these problems. Those deaths which appear to have been avoidable
demonstrate inter alia poor assessment of the true causes of the arrested or detained person’s condition; poor
practice in relation to their monitoring or rousing when detained in cell accommodation; poor liaison (if
any) with the forensic medical examiner; poor diagnosis and/or treatment decision making by the medical
practitioner asked by the police to examine the person; and, lastly, lack of urgency in ensuring that
appropriate medical treatment is provided.

What further steps need to be taken to prevent suicide and self-harm in custody?
The incidence of death in a cell or police station due to self-harm has decreased over the past five years and
this may be due, in part, to improved risk assessment and monitoring together with better quality custody
accommodation. However, practices remain varied across the police service with regard to measures
designed to reduce risk. Custody accommodation, itself, remains of variable quality; custody staV in
diVerent police services receive diVerent levels of training at diVerent times; custody oYces are staVed
diVerently, some having entirely dedicated staV and others staV drawn from general duty on a rota basis.
Some custody areas and services have a high component of civilian staV undertaking work of significant
responsibility. Other police services continue with largely police oYcer staYng of the custody function.
The Authority has highlighted above many of the practical steps which could be taken to prevent suicide
and self harm in custody. Clearly, early and rigorous compliance with the new provisions found in Code C
will prove a positive influence in reducing the risk of harm.
Better liaison with, and inter-agency co-operation between, police services, forensic medical examiner
services, mental health trusts and accident and emergency departments are essential to reaching and
sustaining the lowest level of risk attainable. Practical measures to reduce the risk of harm must include the
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acceptance by the police service that CCTV vision and audio recording of custody areas is an essential pre-
requisite. CCTV systems must also monitor some cell accommodation for vulnerable persons to facilitate
more eVective monitoring.

Other deaths or injuries in custody?


The second part of this memorandum showed the specific steps the Authority has taken to highlight
practical measures to reduce the risk of deaths in custody. The more rigorous requirements of new Code C
will be of direct relevance to these cases and better liaison with and inter-agency co-operation between the
police and community mental health services will be important to the humane and safe treatment and
detention of those with mental health problems. In the Metropolitan Police Service area pilot procedures
are being introduced to test the feasibility of the NHS radically changing its response to the mentally
distressed or disordered person in the community where the police may be conventionally expected to deal
with the problem. Northumbria Police are, with its local university, developing specific training which will
provide local police services with police oYcers trained in crisis intervention for persons with severe mental
illness. Such a resource to a police service could well improve its capacity to deal diVerently with those
presenting disorders and possibly threatening behaviour without resorting to the use of significant
physical force.
In relation to both risks the Authority will, in the time remaining to it, report to the Learning the Lessons
Committee concerns arising from its supervised investigation casework to ensure that lessons are generalised
throughout the police service.

What kind of Human Rights approach to conditions of detention and management of detention facilities
contribute to the prevention of deaths in custody?
The Authority is not specifically aware of the police service taking a “human rights approach” to the
management of conditions of detention. The codes of practice which govern much of the treatment of those
in detention pre-date the Human Rights Act and was introduced when the vast bulk of police powers were
codified and prescribed. Nevertheless, PACE and the codes of practice, particularly Code C, made under it
are mainly if not entirely compliant with ECHR obligations resulting from Articles 2, 3, 5, 8 and 14. Such
standards as are reflected in Code C clearly encourage the belief amongst police staV that persons detailed
in their custody have fundamental rights and there are specific obligations many directed to ensuring their
humane and safe detention. Custody visitors provide an important independent scrutiny and discipline
having direct access to persons detained at the time of their detention and gaining from this direct reports
as to the standards of treatment and conduct. Custody visiting must also provide police managers with
independent observation on the standard and adequacy of cell accommodation. No doubt, from time to
time, custody visitors raise concerns with custody staV and managers within a “human rights framework”
and they should be encouraged in so doing.

(ii) Investigation of deaths in custody


The Authority notes that the Committee intends to consider this issue from the point of view of the new
arrangements to be introduced from 1 April 2004 under the Police Reform Act and with the creation of the
new Independent Police Complaints Commission.
The Authority’s view is that current law and the manner in which it supervises police investigations meets
ECHR requirements for an eVective, prompt and independent investigation with eVective participation.
However, it is recognised that a human rights culture is present where judgement merely as to legal
compliance form only the foundation upon which better practice is built. Where a next of kin or bereaved
family lack confidence in the integrity of an investigation or it takes too long to undertake or it has been
unduly secretive to those with a personal stake in the inquiry, then the spirit of the ECHR may be
compromised.
Current arrangements have not permitted this Authority, and investigating oYcers supervised by it, to
provide in every case an inquiry which has enjoyed such confidence and many investigations have been far
too protracted where the time taken by the Crown Prosecution Service to determine the issue of criminal
culpability and the time for a Coroners’ inquest to be held are taken into account. The legal framework
within which the Authority has had to work has been unduly restrictive in relation to the following elements:
— Neither PACE 1984 nor the Police Act 1996 require the police to refer to the Authority for it to
supervise an investigation into a death in custody where no complaint has been made. This is
remedied by the provisions in the Police Reform Act.
— Section 80 of the Police Act 1996 has been seen as a barrier to disclosure in the past. Sections 20
and 21 Police Reform Act and regulations made under that Act will impose positive obligations
to inform and disclosure whereas formerly the Police Act 1996 appeared to assume a largely secret
process of inquiry and feedback on outcomes.
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— Since the legal arrangements have prevented the PCA investigating allegations or incidents itself,
this has limited the impact of independent supervision where hostility and/or mistrust is felt
towards police investigators. The investigation powers under the Police Reform Act and the
resources to be committed to independent investigation will help to reduce or remove this severe
limitation on the PCA’s eVectiveness where confidence is a serious issue.
It is, of course, essential for the IPCC to be properly resourced for its new independent investigation task
and essential that it recruits and prepares staV suYcient in number and expertise to deal with the enormous
challenge of independent investigation with eVective and sensitive family liaison.
19 September 2003

APPENDIX

DEATHS IN CUSTODY—AN ANALYSIS OF POLICE-RELATED DEATHS IN HOME OFFICE


CATEGORIES 1, 2 AND 3 BETWEEN APRIL 1998 AND MARCH 2003
Dr David Best
Police Complaints Authority
19 September 2003

Background and Rationale


From 2 October 2000, the Human Rights Act 1998 was incorporated into UK law, including Article 2 on
the “right to life” stating that “Everyone’s right to life shall be protected by law”. The report below attempts
to address issues around the right to life and its manifestation in police custody and broader contact between
the police service and the general public, to examine the main causes of deaths in custody and underlying
common factors in the context and characteristics of these deaths. One of the main emphases of the work
will be on vulnerable populations, in the context of suicide, and in relation to ethnicity as an indicator of
increased likelihood of custody death.
According to Home OYce data, just under 1.3 million people suspected of committing an oVence are
arrested every year. In 2001–02, of this 1.3 million arrests, 97,800 (8%) were recorded as being black, 55,600
(4%) as Asian and 11,800 (1%) as being of other “non-white” groups. This represented a rise of 7% for Asian
and 12% for black arrestees when compared with the previous year.
However, among all ethnic groups, death in custody is an exceptionally rare event, with the PCA Annual
Report (2003) indicating that there were a total of 27 Category 3 custody deaths (see below for definition)
in 2001–02 and 30 such custody deaths in 2002–03. Although the periods of assessment are not directly
comparable, this means that there are slightly more than two deaths per 100,000 arrests in England and
Wales.
However, every such incident is a tragedy and is investigated accordingly. This investigation will be
undertaken by the professional standards department of the police force in which the incident occurred or,
on occasion, of an independent force. All of the deaths included in this analysis have also been supervised
by an independent oversight body, the Police Complaints Authority (PCA).
The PCA has previously attempted to address this issue in two linked reports (1999). The first of these
highlighted risks around custody and made recommendations to address a number of risk factors with the
follow-up report identifying successes—a success that is evidenced in the reduction in custody deaths over
the course of the 1990s.
The PCA is in a unique position to assess police-related deaths through its supervision role, by which all
deaths involving the police are referred voluntarily by the relevant force for supervision of the investigation.
The PCA file therefore is based on the police investigation and will supplement this with the relevant
correspondence involved in the investigation of the death and with any matters arising.
To make most use of the PCA evidence base, the paper will examine as many of the supervised cases
involving the death of a member of the public as can be accessed in a five-year window, relating to the Home
OYce categories 1 to 3. The definition classes police-related deaths as:
Category 1: Fatal road traYc incidents involving the police
Category 2: Fatal shooting incidents involving the police
Category 3: Deaths in or following custody
Category 4: Deaths during or following other types of contact with the police
For the purposes of the current analysis two groups have been excluded. Category Four deaths in custody
and road traYc incidents involving emergency responses and standard patrol collisions. The reason for this
is that each of these groups will include deaths among those not involved directly with the police. As the
unit of analysis in the current study is the individual who has died, it was decided that the primary focus of
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the study would be on those who died in police custody, but to use an overview analysis of pursuits and fatal
shootings as both a context and as contrast groups for the main analysis. In sum, what this means is that
the results are presented as:
1. Summary characteristics of the 302 deaths considered in the report
2. Comparison of Category 3 custody deaths with pursuit and shootings deaths from the same period
3. Analysis of Category 3 custody deaths
4. Analysis of ethnicity factors in Category 3 custody deaths
This, in eVect, means that the study will consider fatal road traYc incidents, deaths in police care and
custody and fatal police shootings that have been supervised by the PCA.
The five-year window selected, from April 1998 to March 2003, is an attempt both to maximise the sample
and to ensure that as much of the information that can be accessed within the PCA is used. There are
limitations in data at both ends of the selection. For the earliest year, 1998–99, a number of the files have
been destroyed and so some of these are likely to be excluded (in cases where no information can be accessed
from other sources). For the most recent year, 2002–03, the problem is that many investigations have not
been completed by the time of writing, and so there will be limited information available, and what
information there is, will be of limited reliability as it will not have been confirmed through all the relevant
investigative channels.
The search strategy for identifying files was by using the PCA Annual Reports and then reconciling these
with information accessed from the PCA computerised database or from the PCA Press OYce files. Once
the files had been identified, the physical tracking down of the case used one of four sequential mechanisms:
1. Was the file held by the PCA research department?
2. Was the file available in the storeroom of completed files within the PCA?
3. Was the file held at the PCA archives depot?
4. Is the file currently with the member or caseworker as it is an ongoing case?
A total of 305 files were identified, but three of these files could not be tracked down, meaning that the
total number of cases entered on the database is 302. For this reason, the data presented below, on the 302
files accessed, analysed and entered, is less likely to involve ongoing “live” cases (most likely from 2002–03)
or those held in the archives (1998–99). Similarly, even among older cases, those that are particularly
complex are more likely to be ongoing and so are less likely to be complete, for the purposes of the
current analysis.

Analysis and Basic Results


The analysis outlined below is based on the 302 cases identified as falling into one of the first three
categories, divided as below:
Fatal police shootings 12 (4%)
Road traYc incidents 137 (45.4%)
Deaths in custody 153 (50.7%)
This is reflected in the year breakdown, shown in Table 1 below

Table 1

YEARLY BREAKDOWN OF CASES INCLUDED IN THE STUDY


1998–99 1999–2000 2000–01 2001–02 2002–03
46 (15.2%) 57 (18.9%) 57 (18.9%) 70 (23.2%) 72 (23.8%)

There are two reasons why this cannot be regarded as definitive trend data in spite of the apparent increase
in numbers over the period of study. First, the availability of information relied on access to the file
(although this was possible in almost all cases). However, it is also reliant on referral policy (particularly in
road traYc incidents about whether the police involvement was suYcient to refer) and subsequent PCA
decision-making about the acceptance of referrals. More importantly, the overall data disguise shifting
patterns within the two main classes of death examined—fatal road traYc incidents and deaths in custody
(as shown in Figure 1 below). Thus, while the total number of deaths in custody have remained broadly
consistent over the course of the study, the number of fatal road traYc incidents have increased dramatically
in the same period.
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40

35

30 Shootings

25

20
RTI

15

10
DIC

0
1998-1999 1999-2000 2000-2001 2001-2002 2002-2003
Figure 1: Shifts in patterns of police-related death by category

Characteristics of those who have died


The mean age of those who died was 34.4 years, although it should be pointed out that there is a wide
range with the youngest victim two years old (a victim in a road traYc incident) and the oldest 87 years old.
The sample was also predominantly male (n%271, 89.7%), with only 31 deaths (10.3%) involving female
victims. While all of the victims of police shootings were male, 20 of the female deaths were in road traYc
incidents and 11 were deaths in police care or custody.
Ethnicity data was available for 271 individuals (90%). Of these, 218 (80.1%) were classed as white, white
British or white European, with 27 victims classed as black, black British or Afro-Caribbean (9.9%), 20
(7.4%) as Asian or Indian, and seven as from other ethnic backgrounds (2.6%).
In terms of vulnerability, 90 of the 293 cases where this was known (30.6%), involved a victim with a
previously identified mental health problem—in 26 cases this had been diagnosed by a psychiatrist, in 22
cases by the individual’s GP and in 42 cases, mental health problems had been identified elsewhere (eg by
prison doctors or social workers). While up to three separate diagnoses were recorded for six individuals, a
history of self-harm was indicated in 29 individuals (32.2%), depression in 32 cases (35.6%), alcohol
dependence in 21 cases (23.3%), drug dependence in 13 cases (14.4%) and schizophrenia or psychotic
symptoms in 20 cases (22.2%). A further indication of substance use was derived from the post mortem
toxicology reports, with an average of 1.2 active drugs reported from the toxicology reports. Of the 297 cases
for which information was available, 178 individuals (59.9%) were positive for at least one drug or alcohol.
Alcohol was the substance most frequently identified, present in 107 cases (35.4% of the total sample).
With regard to illicit drugs, cannabis was identified post mortem in 50 deaths (16.8%), cocaine in 34 cases
(11.4%) and heroin or heroin/morphine in 22 cases (7.4%). The other drugs frequently recorded were
benzodiazepines in 38 cases (12.8%), although it is not clear if this was prescribed or illicitly diverted drugs
and novel stimulants (such as ecstasy and its analogues) in 24 cases (8.1%).
In terms of the location of the incident, large urban forces were, as would be expected, highly represented.
A total of 48 cases (15.9%) occurred in the Metropolitan Police area, with the next highest prevalence in
Greater Manchester (n%21, 7%), followed by West Yorkshire (n%17, 5.6%) then both Devon and Cornwall
and Thames Valley (n%14, 4.6%). However, each of the 43 Home OYce forces has experienced at least one
death in the five-year time window (a full breakdown is presented in Appendix 1).
Although diYcult to classify, the reason the individual was initially in contact with the police was as a
result of police intelligence in 166 cases (55.7%) or as a result of driving matters (89 cases, 29.9%). Other
reasons for initial police involvement were being observed committing a crime (in 14 or 4.7% of cases),
routine stops (in 11 or 3.7% of cases) or because the individual was reported to have been “behaving
suspiciously” (in 13 or 4.4% of cases).
Data were also gathered on the location of death although this can be misleading as it will often reflect
where death was pronounced to be extinct rather than where the individual died. For this reason, the most
common location was in hospital (in 130 cases, 43.5%), followed by in a public place (106 cases, 35.5%).
Only 51 of the 298 cases on which this data was available (17.1%) actually died in police cells or other parts
of the police station. A further 12 (4%) died at home.
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At the time of the incident, 124 of the 298 of the individuals for which the information was available
(41.4%) were either detained or under arrest. In the remainder of cases, the police were attempting to arrest
the individual (91 cases, 30.4%), there was no arrest intention (69 cases, 23.1%) or the death occurred after
the individual had been released from police custody or contact (15 cases, 5%).

Causes of death and issues of concern for the police

In 24 cases (8.1% of the 298 cases for which information was available) there was a restraint concern that
was subject to investigation (although this concern was not necessarily upheld by the investigators), ten of
these involving the use (and alleged misuse) of handcuVs. These include two cases where the individual was
still in handcuVs when taken to hospital, one case where an individual was handcuVed while unconscious,
and one occasion where the individual had flexi-cuVs used to restrain his or her legs. In four cases, the
restraint issue relates to the use of CS spray, in one case to the type of restraining hold used by the police
oYcer and in two cases to the length of time the individual was left sitting restrained in a police van.
However, in a number of other incidents the matter investigated related to the technique used by oYcers to
control the individual—including the use of a “bear hug” in one incident, forcing a man’s arm up behind
his back in another and the violent struggle preceding arrest in a third case.

Similar problems exist in making sense of the cause of death identified at the post mortem, not least
because in 13 cases, three causes of death are given while in a further 40 cases, two causes of death are
provided by the pathologist. However, among the 301 cases for which at least one cause of death was
available from the post mortem investigation, the most common main cause of death was “multiple injuries”
in 76 cases (25.2%), followed by alcohol or drug toxicity in 47 cases (15.6%) and “head injury” in 33 cases
(10.9%). Cause of death in all 12 fatal shooting cases was given as the eVects of the shot or shots.

In 10 cases (3.3%), “hanging” was given as the cause of death, with ligature strangulation given as the
cause of death in one additional case. In four cases, excited delirium is given as the cause of death and, in
five cases, asphyxiation is given as the cause of death. However, there are a total of 73 primary causes of
death cited in cases included in the study.

Complaints, criminal and disciplinary outcomes

In only 16 of 300 cases (5.3%) was there a formal complaint made by family members as a result of the
incident that led to the death—10 of these arising in custody deaths, five relating to road traYc incidents
and one following a police shooting. However, in several of these cases, more than one issue was raised in
the course of the complaint (see Table 2 below). Furthermore, there are concerns expressed by family
members that are recorded in the investigation file in a number of cases, while there may yet be complaints
from family members in some of the cases that have not yet been completed.

Table 2

COMPLAINTS ARISING FROM DEATHS INVOLVING THE POLICE

Category Nature of complaint


Pursuit OYcers knew the occupants and therefore should not have pursued; There was a
delay in notifying the family about the incident; Witnesses stated that an oYcer
kicked the deceased.
Pursuit Passenger in pursued car complained that he was assaulted by an oYcer.
Pursuit Pursuing oYcer committed traYc oVences in the pursuit; The pursuit was
dangerous and should not have taken place; The FLO lied to the family; The oYcer
was unsympathetic.
Pursuit Relating to the actions of the police prior to the collision, at the scene, at the hospital
and with regard to family liaison.
Pursuit Should not have been pursued; conduct of the pursuit.
Death in custody Obvious ligature point in the cell.
Death in custody Unlawful arrest; unnecessary force used.
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Category Nature of complaint


Death in custody OYcer failed to look after the individual’s health and welfare; oYcer should have
acted quicker; oYcer’s actions contributed to the death; oYcer was aggressive and
assaulted victim’s mother.
Death in custody Failed to provide proper medical attention; Custody oYcer listed victim as
unknown when he was known to the police.
Death in custody Breach of Code C: failure in duty.
Death in custody Unlawful detention: oYcers acting outside the powers of the Mental Health Act;
excessive use of force.
Death in custody Deceased not allowed to use toilet nor to change clothes; FME pronounced the
deceased fit to detain; Delay in informing family; FLO attitude not acceptable.
Death in custody Failure of oYcers to make inquiries about drugs and alcohol consumption; Failure
to update custody records; Failure to observe detainee properly.
Death in custody Inadequate investigation; Dishonesty of police oYcers; Failure of oYcers to
intervene.
Death in custody The actions of oYcers caused the deceased to lapse into unconsciousness due to the
failure to monitor prisoners.
Shooting Initial complaint of unlawful use of force and falsified accounts. Subsequent
complaint alleged that: Family not informed soon enough about the death; FLO
had no respect for family privacy; OVer to pay for funeral was made and withdrawn;
Scene of shooting was managed insensitively.

The final report records concerns expressed by family members or community groups in a further 12 cases
where no formal complaint was made. These included:
— Concerns that the deceased should have been taken to hospital earlier.
— Concern that the time for arrest given by the police was inaccurate.
— Concern that the FME was not called, while the oYcers were watching football and that the
oYcers did not do all they could to preserve safety.
— Concerns about the level of care and why the individual was not taken to hospital.
— Concerns about delays in informing the family and that clothing was seized.
— Dissatisfaction with the IO who was seen as rude by the family.
— Family concern that police actions contributed to the death.
— Concerns that the deceased was beaten and that potential witnesses were not requested.
In only three of the finalised cases did oYcers face criminal charges for involvement in a death, and, on
each occasion, was subsequently acquitted (although a further 31 cases have not yet reached this stage).
These were:
(a) Five oYcers were acquitted of misfeasance and manslaughter following a death in a custody suite
in Humberside.
(b) One oYcer was acquitted of misfeasance following a cell death in Lancashire.
(c) A police driver was found not guilty of dangerous driving following a police pursuit.
In one further case, an oYcer was required to resign at a disciplinary hearing. In no finalised case were
any oYcers demoted in rank following disciplinary proceedings.
In terms of formal disciplinary proceedings, 16 of 260 cases (6.2%) resulted in oYcers receiving formal
disciplinary outcomes. In eight cases an oYcer was admonished, in six cases this happened to two oYcers,
and in one case each, three and four oYcers respectively were admonished or received a warning following
investigations into police-related deaths. A total of 168 oYcers received advice from a senior oYcer in a total
of 65 cases (of 260 that had reached disciplinary conclusions by the time of writing). In one case, a total of
15 oYcers were given advice following the investigation.
At the time of analysis, information regarding recommendations was only available in 259 cases. Of these
259, policy, training or organisational recommendations were made in only 96 cases. The number of
recommendations made in each case ranged between one and 30. In the remaining 163 cases (62.9%) no
recommendations of any sort were made. Where recommendations had been made, information about
implementation would not always be provided to the PCA, as the Authority has no role in monitoring the
implementation of such recommendations.
Finally, at the time of writing, an inquest had been held in 194 cases. In a further 56 cases the inquest date
was yet to be set. In 45 cases no inquest was scheduled to take place, generally involving road traYc incidents
where those driving the cars that killed the victims were later convicted of causing the death. Of the inquests
held, 73 returned a verdict of “accidental death” (37.8%), with the jury in one further case returning a verdict
of “accidental death contributed to by neglect”. A further 26 cases (13.5%) resulted in verdicts of
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“misadventure” and 28 cases (14.5%) in verdicts of “natural causes”. In 15 cases, an “open” verdict was
returned, and in five cases the verdict was “lawful killing” (these were all police shootings). In a further six
cases, the verdict was “drug-related death”.
Twelve cases (6%) resulted in “unlawful killing” verdicts (although all but one of these involved police
pursuits and related to instances where the pursued driver had killed another road user or pedestrian). In
only one custody case, relating to the death of a black man in Humberside, did a custody death result in a
verdict of unlawful killing.
Ten deaths resulted in verdicts of suicide and two in verdicts of “suicide contributed to by neglect”. One
of the 10 suicide deaths was a police shooting described by the coroner as a “suicide by cop” incident.

Comparison of death categories


There was a significant disparity in age profiles with the mean age of deaths in custody (mean % 40.5
years) markedly higher than fatal shootings (mean % 33.7 years), which in turn was significantly higher than
road traYc incidents (mean % 27.2 years; F % 28.1, p(0.001). The largest proportion of female deaths was
in road traYc incidents (14.6%) compared with none of the 12 shootings and 7.2% of deaths in custody,
which constitutes 11 cases (x2%5.73, p%0.06, ns).
In terms of shifting patterns of deaths over the period of investigation, the basic trends are shown in Table
3 below:

Table 3

BREAKDOWN OF CASES BY YEAR FOR EACH OF THE DEATH CATEGORIES

Year Shootings (n%11) RTI (n%117) DIC (n%122)


1998–99 0 13 (9.5%) 33 (21.6%)
1999–2000 3 (25.0%) 24 (17.5%) 30 (19.6%)
2000–01 2 (16.7%) 26 (19.0%) 29 (19.0%)
2001–02 4 (33.3%) 36 (26.3%) 30 (19.6%)
2002–03 3 (25.0%) 38 (27.7%) 31 (20.3%)

When ethnicity is compared by category of death, there is no significant diVerence. To enable this analysis,
ethnicity categories were collapsed into four groups—white, Asian, black and other. For all three categories
of death, over 75% of those who died were white. Of the 27 deaths classed as among black people, two
(17.4%) were police shootings, 13 were in fatal road traYc incidents (48.1%) and 12 were deaths in custody
(42.3%). Of the 20 individuals classed as Asian who died, 11 (55%) died in road traYc incidents and nine
(45%) in deaths in custody.
Those involved in road traYc incidents were less likely to come from identified vulnerable populations.
With regard to a confirmed mental health indicator, this was the case for 9/12 (75%) of those fatally shot by
the police, and 50% (n%75) who died in police custody, compared with only 4.5% of those whose status was
known in road traYc incidents (x2 % 81.7, p'0.001). Similarly, while victims of fatal road traYc incidents
averaged 0.7 diVerent active drugs in their bloodstream at post mortem, the average for fatal shooting
victims was 1.2 (in each case this included alcohol) and in deaths in custody the average was 1.6 (F % 16.6,
p'0.001).
There were significant diVerences in the disciplinary outcomes as a consequence of the category of incident
(see Table 4)

Table 4

DISCIPLINARY OUTCOMES BY CLASS OF INCIDENTS

Shooting (n%11) RTI (n%117) DIC (n%122) F, sig


No of oYcers disciplined 0.14 0.01 0.20 5.61, p '0.01
No of oYcers given advice 1.57 0.18 1.06 11.61, p'0.001
No of policy recommendations 4.6 0.4 1.3 13.46, p'0.001

As is evident from the above table, road traYc incidents were markedly less likely than either of the other
classes of police-related deaths to result in disciplinary outcomes or in recommendations of policy change
by the SIO (which were most common in cases of police shootings). However, it is notable that the highest
levels of both main disciplinary outcomes occurred in death in custody cases.
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Focusing only on deaths in custody

This section of the analysis will focus on the 153 cases of Category Three death according to the Home
OYce classification scheme. To re-iterate the main characteristics of the group, their mean age was 40.5 years
(with a range of 15 to 76 years), and they were predominantly male (142/153 or 92.8%). A total of 27
individuals (17.6%) were categorised as non-white in the sample—nine as Asian, 12 as black and six as from
other ethnic backgrounds. However, ethnicity data were missing on 11 cases (generally among files from the
earlier years where the file was no longer available).
On average, post mortem analysis revealed that they had consumed a mean of 1.6 active substances63 in
the period prior to their death—most commonly alcohol, which was detected in 67 cases (43.8% of cases).
Other drugs consumed are shown in Table 5 below:

Table 5

MAIN SUBSTANCES DETECTED POST MORTEM AMONG DEATH IN CUSTODY CASES

Substance Number of cases %


Cocaine 27 17.6
Heroin 19 12.4
Benzodiazepines 31 20.3
Ecstasy 13 8.5
Cannabis 21 13.7

It is important to note that benzodiazepines will include those prescribed therapeutically—in some cases
in custody—and so are not, unlike the other substances included, necessarily indicative of drug abuse.
The group was rendered further vulnerable by the prevalence of mental health problems identified. Just
over half of the cases for which information was available (75/149, 50.3%) had a prior indication of mental
health problems—with 17 individuals having a previous diagnosis by a psychiatrist, 20 having GP
indications of mental health problems and with the remaining 38 having other indications in the
investigation files of earlier mental health problems. This is a level of mental health problems considerably
in excess of that generally reported in custody populations (Bennett, 1998; Ingram and Johnson, 1998).
For 30 individuals (19.6% of all custody deaths included) there were prior indications of anxiety or
depression, 26 had recorded histories of self-harm (17%), 17 had markers for psychosis or schizophrenia
(11.1%), 12 had histories of drug dependence (7.8%) and 18 (11.8%) had histories of alcohol dependence.
“Behaviour problems” or other psychiatric problems were recorded in six further individuals. In other
words, for a substantial proportion of the custody death group considered in this report, there were not only
indications of mental health problems and/or substance abuse, but there were previous contacts with health
agencies attempting to address these problems.

Locations of the death

Again, the police service most commonly associated with custody deaths was the Metropolitan Police
Service (MPS) accounting for 32 (20.9%) cases. The force with the next highest level of custody deaths was
Northumbria (n%10), followed by West Midlands and Devon and Cornwall (eight deaths each). However,
the 153 deaths were spread between 36 diVerent police forces in England and Wales.
In more specific terms, the place of death was recorded as the police station or cell in 45 cases and “police
vehicle” in a further six cases—in other words 33.8% of the 151 cases for which this information was
available involved death in a police location. The other main locations for death recording were in hospital
(79 cases or 52.3% of the valid sample), with 12 individuals dying in a public place and nine at home.
The initial contact resulted from “police intelligence” in the vast majority of cases (111 or 74.5% of the
death in custody cases). Less frequent reasons for the initial police involvement were traYc or driving
matters (in 13 cases), the individual being observed committing a crime (12 cases), the police perception that
the individual was engaging in suspicious behaviour (seven cases) or routine stops (four cases). Other
reasons were given in a further two cases and this information was not available in four cases. As has been
detailed above for all deaths, there were restraint-related aspects of the investigation in 23 cases (15.4%)—
generally relating to the timing and location of handcuYng, the use of force in the initial arrest attempt, the
use of CS spray or delays in the removal of restraints when it was apparent that the individual was
experiencing significant health problems.

63 Active substances refers to illicit drugs, alcohol or prescribed medications (including those diverted through illicit routes).
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Although custody detention issues are likely to be significant, the attempt to quantify this is problematic.
The calculated mean time is 384 minutes (just over six hours), but this is heavily skewed by two cases where
the individual is in custody for more than two days. However, it is worth noting that in nine cases, the
individual is in detention for 24 hours or more.

The prevalence of substance use is clearly indicated by the fact that “toxicity” is cited as a cause of death
in 47 cases (31.8% of the 148 cases for which this information is available). Head injuries are cited in 12 cases,
hanging in 10 cases, multiple injuries in seven, hypoxia in five cases and excited delirium in four cases. In at
least seven further cases, alcohol-related factors are cited among the causes of death. Changes over time in
the frequency of both toxicity deaths and hanging deaths are given in Figure 2 below:

12

10

8
Toxicity

4 Hanging

0
1998- 1999- 2000- 2001- 2002-
1999 2000 2001 2002 2003

Figure 2: Change in frequency of toxicity and hanging as causes of death over time

As can be seen from the above table, there is no consistent pattern in deaths where toxicity is given as a
cause, but there appears to be a positive change in the number of strangulation or cell deaths with only one
death in each category in each of the last two years.

Investigations and outcomes

In only two of the 131 cases that have reached that stage was there a criminal trial of an oYcer, with six
oYcers tried in total, with all six being acquitted. An oYcer was required to resign following one of the
custody deaths, and in 14 cases a total of 25 oYcers were warned or admonished following the investigation.
In 45 of the 127 cases (35.4%) completed to date, oYcers were given advice by a senior oYcer, resulting in
a total of 134 oYcers dealt with in this way.

In 49 of these 127 cases (38.6%), the Senior Investigating OYcer (SIO) recommended further action at a
policy level. The most common areas identified by senior investigators as needing to be addressed were:
— Training needs for oYcers (n%39, 30.7%).
— Issues around the management of vulnerable populations (n%31, 24.4%).
— Equipment issues (n%30, 23.6%).
— Incident management issues (n%21, 16.5%).

The other most common themes identified by SIOs were custody management issues (in nine cases),
failures of inter-agency working (in seven cases) and failures of post-incident investigation (in five cases).

A further investigation was carried out in the form of a coroner’s inquest in 112 cases. Details of the
inquest outcomes are given in Table 6 below. It should be noted that multiple verdicts are given in a number
of cases:
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Ev 62 Joint Committee on Human Rights: Evidence

Table 6

INQUEST VERDICTS GIVEN IN DEATH IN CUSTODY CASES IN CASES COMPLETED


TO DATE

Inquest verdict Frequency %


Accidental death 29 19.1
Misadventure 15 9.9
Open 13 8.6
Drug related 6 3.9
Suicide 10 6.6
Accidental death contributed to by neglect 1 0.7
Natural causes 28 18.4
Suicide by neglect 2 1.3
Accidental death contributed to by restraint and failure
to provide medical care 1 0.7
Misadventure contributed to by police neglect 1 0.7
Pending 38 25.0
Unknown 2 1.3
Total 147 96.7

For the 10 complaints received to date (details of which are provided above), four are still under active
investigation. In the remaining cases, one has been informally resolved, two have been upheld in part and
three have not been upheld.

Examining ethnicity issues among custody deaths

This part of the analysis will focus on the 27 non-white individuals who died in custody in the period of
the review. The mean age of the non-white group was 37.3 years (range of 19–66 years) and consisted of 26
males and one female.

Seven of these individuals (26.9%) had a previous indication of mental health problem(s)—three on the
basis of psychiatrist diagnosis and four based on information from other sources in the SIO’s report
(information was missing in one case). Four of these individuals had drug dependence indicators and one
had an alcohol dependence marker. Two individuals had indications of schizophrenia, two had markers for
either anxiety or depression, and one had another psychiatric problem. In other words, there were a total
of 10 symptoms indicated in this group.

In 22 of the 26 cases where this information was available (84%), there was at least one active substance
present at the toxicology. As with the larger sample, the most common substance present was alcohol (48%),
followed by cocaine (28%), heroin or morphine (20%), cannabis (20%) and benzodiazepines (16%). There
was no relationship between mental health status and the likelihood of substance use prior to death.

More than half of the cases (n%14, 53.8%) of custody deaths involving ethnic minority individuals
occurred within the MPS, with a further four deaths occurring in West Midlands, two in Sussex, and one
each in Northumbria, Essex, West Yorkshire, Hampshire, Surrey and Hertfordshire.

For the ethnic minority group, just over half the deaths occurred in hospital (13/25, 52%) with four
occurring in police stations or cells and one in a police vehicle. Three individuals died at home and four in
a public place. In the majority of cases (17/25), the reason for the initial police contact was based on police
intelligence, and also for the majority (18/26) the individual was under arrest at the time of the death.
However, for a further five, death occurred post release, and for the final three individuals death occurred
either while the police were in the process of attempting to arrest or detain the person.

In five of the 23 cases for which this information was available, there was a restraint issue, four relating
to the method of restraint (generally about the use of handcuVs) and one involving a violent struggle prior
to the arrest.

However, in 11 cases (42.3%) toxicity was cited as a cause of death, with multiple injuries cited in three
cases, and excited delirium and head injury in two cases each. The full range of primary causes of death are
given in Table 7.
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Table 7

PRIMARY REPORTED CAUSE OF DEATH IN CUSTODY DEATHS AMONG NON-WHITE


DEATHS

Post mortem cause of death


Year First Second Third Inquest verdict
1998–99 Toxicity Unknown
Advanced alcoholic Natural causes
liver disease
Multiple injuries Accidental death
Hypothermia Misadventure
Toxicity Accidental death
Dilated Natural causes
cardiomyopathy
Toxicity Misadventure
Bronchopneumonia Inhalation of vomit Toxicity Accidental death
Excited delirium Pending
Not known Unlawful killing
1999–2000 Toxicity Accidental death
Irreversible cerebral Toxicity Misadventure
anoxia
Ischaemic heart disease Coronary heart disease Toxicity Natural causes
Head injury Accidental death
Hepatitis Multi organ failure Open
Head injury Accidental death
Excited delirium Toxicity Drug related
Asphyxiation Misadventure
2000–01 Toxicity Accidental death
Unknown Open
2001–02 Toxicity Misadventure
2002–03 Multiple injuries Pending
Chronic bronchitis Emphysema Pending
Cardiac arrest Pending
Respiratory distress Toxicity Pending
syndrome
Tracheobronchitis Skull fracture Pending
Multiple injuries Accidental death

In outcome terms, there has been one trial in the 22 completed cases, with 21 inquests having taken
place. The details of inquest verdicts are given in Table 8 below:

Table 8

INQUEST VERDICTS IN DEATHS IN CUSTODY INVOLVING INDIVIDUALS FROM


BME GROUPS

Inquest verdict Frequency %


Accidental death 8 29.6
Misadventure 5 18.5
Open 2 7.4
Drug related 1 3.7
Pending 6 22.2
Unknown 1 3.7
Natural causes 3 11.1
Unlawful killing 1 3.7

In four of the 22 cases completed to date, a total of eight oYcers were warned or admonished and a further
21 oYcers were given advice by senior oYcers.
When inferential statistical comparisons were carried out comparing white and non-white custody deaths,
almost no statistical diVerences emerged. Although white custody deaths were typically older (40.7 years
versus 37.3 years) this was not significant.
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Ev 64 Joint Committee on Human Rights: Evidence

A significantly lower proportion of non-white deaths in custody involved mental health problems (28%
versus 55.4%; c2 % 6.12, p'0.05).
There has also been a significant reduction in the proportion of non-white deaths over time within the
window of investigation in the study, which does achieve statistical significance.

30

25

White
20

15

10 Non-white

0
1998- 1999- 2000- 2001- 2002-
1999 2000 2001 2002 2003

Figure 3: Proportion of deaths by ethnicity over time


As can be seen from the figure above, the number of deaths among non-white individuals decreased over
the first four years of investigation but has increased in the most recent year, while the total number of white
deaths has remained relatively constant over the period of investigation.
Finally although it did not attain statistical significance and the numbers are relatively low, it is notable
that there are restraint issues in a higher proportion of the deaths involving non-white individuals (21.7%)
than among white individuals (12.3%) (see Appendix 2).
In terms of investigation outcomes, a slightly higher mean number of oYcers received warnings or
admonishments in non-white deaths (mean % 0.36) than in white deaths (mean % 0.18) but this was not
significant. Conversely, more oYcers received advice on average for white custody deaths (mean % 1.2) than
in non-white custody deaths (mean % 0.9) but this also failed to attain significance.

Overview
The study shows a relatively consistent pattern of custody deaths in the five-year window examined, with
the 153 PCA-supervised custody deaths roughly equally spread across the period of investigation. This
contrasts with the comparison group of pursuit deaths where the trend is upwards over the period of
assessment, with the exception of the most recent year. Although exceptionally low as a proportion of arrests
(153 deaths from around 6–7 million arrests in the period of investigation), it would not indicate that recent
developments in monitoring or training are having a resulting eVect on the overall number of fatalities.
However, it is important to note that, over the last 10 years, the trend has been towards reduced numbers of
deaths, particularly from hangings, the cause of death that is most obviously preventable. However, similar
improvements have not been detected in the prevention of alcohol and drug-related deaths.
Within this custody group, there are marked variations in the demographic characteristics of those who
have died. The group are primarily male, more than 80% are of white ethnic origin, and with a mean age of
around 40 years (although there are a broad range of ages). There is an over-representation of ethnic
minority individuals in custody deaths in the five-year window studied—while 17.6% of deaths are of
individuals classed as non-white, the 2001 census for England and Wales reported that 9% of the population
are from BME groups. It is also slightly higher than the arrested population reported by the Home OYce
for 2001–02, which showed that 13% of the total arrested population were from minority groups. While this
may partly relate to the way ethnicity has been classified in some cases (and inconsistencies across measures),
the over-representation of ethnic minority groups among the deceased group should not be ignored.
One of the main findings of the study is the exceptionally high prevalence of mental health problems
recorded in the police investigation reports, at around 50% although higher among white deaths than among
ethnic minority groups. In contrast, deaths among minority detainees were slightly more likely to result in
the investigation considering aspects of the restraint of the detainee. However, there are very few clear,
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Joint Committee on Human Rights: Evidence Ev 65

statistically identifiable group diVerences in the characteristics of the incident or the individual as a function
of ethnicity, although the small numbers of individuals from BME groups means that statistically robust
diVerences are diYcult to detect.
The general issue of vulnerability cannot be overstated. The preponderance of alcohol consumption and
illicit drug use (particularly relating to the use of both cocaine and benzodiazepines) is a risk in its own right
and compounds the risk associated with mental health problems. The latter, referred to as dual diagnosis
(Strathdee et al, 2003), is associated with markedly increased risk of mortality from both custody deaths and
from police use of firearms.
One of the most contentious issues will be the apparently low levels of culpability for police oYcers
resulting from the total of 300 cases. Although seven oYcers were charged with criminal oVences, none were
convicted. One oYcer was required to resign and none were demoted. Similarly, in only one case, did an
inquest verdict of “unlawful killing” relate to police activity (in the same case that five oYcers were charged
and subsequently acquitted of criminal oVences). However, in many of these cases, none of the adjudicating
bodies—the inquest, the Crown Prosecution Service, the police investigators or the PCA supervising
members—have found fault with police conduct and many of the disciplinary outcomes relate to ancillary
matters rather than the actual cause of death.
Before drawing tentative conclusions, it is important to acknowledge the limitations of the study. All of
the analyses are based on summaries of the PCA file, which in turn is heavily reliant on the final police report
into each incident. These reports not only vary in depth and quality, they are also designed for a purpose
other than research and so may not be consistent with the aims of the project.
However, there are a number of key inferences that can be derived. Although there have been significant
gains, it is essential that the police remain vigilant and seek to eliminate the preventable deaths that do, on
occasion, still occur. However, deaths are not randomly distributed across the population or indeed the
arrest population, and this is mediated by incident and response type. Vulnerable populations (those with
a mental illness and/or users of alcohol or illicit drugs are hugely over-represented), while those from ethnic
minorities are less likely to have a recorded mental health problem but are likely to be slightly younger and
slightly more likely to have been involved in an incident that provoked concerns about the method of
restraints.
There are a number of implications of this for training and supervision. Earlier access to medical
interventions are essential as is first aid training and refresher courses for all oYcers involved in custody.
Similarly, oYcers must be made aware of the risk factors for self-harm and mental health problems, and for
ensuring that a “safety first” approach is adopted in custody suites. It may appear that, following the
significant gains in the late 1990s, some forces may have allowed complacency to creep in thus generating
risks for those held in custody.
All deaths in custody are, at one level, preventable, although in practice, this is obviously not achievable
as many “natural causes” deaths may be completely unrelated to any actions on the part of the police. The
repetition of areas of recommendations from final reports suggests that prevention is not yet a suYcient
objective and that some opportunities for organisational learning are not being taken. To ensure that HRA
requirements are adhered to, the police service must ensure that lessons are learned and that deaths,
particularly those involving vulnerable groups, are minimised.
All analyses are also made more problematic by the huge variations in the causes of death identified at
post mortem, and this is reflected in the inquest verdicts passed down. In only one cases was the inquest
verdict “unlawful killing” in relation to actions of the police and, given this finding, it is perhaps not
surprising that only one oYcer was charged with a criminal oVence. The most common disciplinary outcome
(in cases where this arose was either formal admonishment or advice for oYcers), and the recommendation
of organisational issues varied markedly from case to case, although much more common in shootings cases
than in deaths in custody or even more markedly when compared to road traYc incidents.

APPENDIX 1

POLICE FORCE LOCATION (ALL DEATHS)

Cumulative
Frequency % Valid Percent %
Cleveland 3 1.0 1.0 1.0
Devon & Cornwall 14 4.7 4.7 5.6
Northumbria 12 4.0 4.0 9.6
Metropolitan Police 48 15.9 15.9 25.6
Essex 7 2.3 2.3 27.9
Leicestershire 3 1.0 1.0 28.9
South Yorkshire 5 1.7 1.7 30.6
Merseyside 13 4.3 4.3 34.9
Greater Manchester 21 7.0 7.0 41.9
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Ev 66 Joint Committee on Human Rights: Evidence

Cumulative
Frequency % Valid Percent %
Durham 3 1.0 1.0 42.9
South Wales 11 3.7 3.7 46.5
Lincolnshire 5 1.7 1.7 48.2
Sussex 8 2.7 2.7 50.8
West Midlands 12 4.0 4.0 54.8
West Yorkshire 17 5.6 5.6 60.5
Avon & Somerset 7 2.3 2.3 62.8
Dorset 4 1.3 1.3 64.1
Gloucestershire 3 1.0 1.0 65.1
Hampshire 7 2.3 2.3 67.4
City of London 1 .3 .3 67.8
Derbyshire 3 1.0 1.0 68.8
Gwent 2 .7 .7 69.4
Surrey 7 2.3 2.3 71.8
Kent 1 .3 .3 72.1
Bedfordshire 3 1.0 1.0 73.1
Nottinghamshire 3 1.0 1.0 74.1
Thames Valley 14 4.7 4.7 78.7
North Wales 5 1.7 1.7 80.4
West Mercia 4 1.3 1.3 81.7
StaVordshire 7 2.3 2.3 84.1
Wiltshire 1 .3 .3 84.4
Norfolk 4 1.3 1.3 85.7
North Yorkshire 4 1.3 1.3 87.0
Cheshire 3 1.0 1.0 88.0
Humberside 4 1.3 1.3 89.4
Hertfordshire 1 .3 .3 89.7
Cambridge 2 .7 .7 90.4
Lancashire 9 3.0 3.0 93.4
South Yorkshire 3 1.0 1.0 94.4
Dyfed Powys 5 1.7 1.7 96.0
Cumbria 3 1.0 1.0 97.0
Warwickshire 3 1.0 1.0 98.0
Northamptonshire 3 1.0 1.0 99.0
SuVolk 2 .7 .7 99.7
British Transport 1 .3 .3 100.0
Total 301 100.0 100.0

APPENDIX 2

ETHNICITY, RESTRAINT ISSUES, CAUSE OF DEATH AND INQUEST VERDICT IN


CUSTODY DEATH CASES WHERE RESTRAINT WAS PERCEIVED TO BE AN ISSUE

What was the restraint


Ethnicity issue Cause of death Coroners verdict
1998–99
white Use of CS on person with Organ failure Suicide
MH problem
white Held around the chest in Brain injuries Accidental contributed
reverse bear hug. by restraint and failure
to provide
black Complaint about Excited delirium pending
handcuYng
black dragged from van—then Multiple Injuries unlawful killing
left on ground with
handcuVs on
1999–2000
black handcuV marks, but Toxicity accidental death
pathologist could not
comment on role restraint
played in death
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Joint Committee on Human Rights: Evidence Ev 67

What was the restraint


Ethnicity issue Cause of death Coroners verdict
white Excited delirium accidental death
white deceased had spent over Aspiration of stomach misadventure
half an hour sitting contents
handcuVed in the van
outside the custody suite
white use of CS Toxicity misadventure
white was handcuVed during Hypoxia Accidental death
hospital transfer
2000–01
asian oYcers use of flexi-cuVs to Toxicity accidental death
restrain legs in
contravention of force
police
deceased was conveyed to Myocardical infarction pending
hospital still cuVed
restrained for hospital Multiple Injuries
transfer
other violent struggle prior to Unknown open
arrest
white handcuVed white Toxicity unknown
unconscious
2001–02
white restrained at hospital due Acute alcohol withdrawal
to fear of assault on with ketosis
staV—handcuVs not
suitable for long term use
white police took hold of man’s Ischaemic heart disease pending
arm, put it up his back
and forced him to the
ground
2002–03
black Cardiac arrest pending
white police assaulted him Bronchopneumonia pending
during arrest but no
evidence to link to stroke
white Excited delirium pending
white Cardio-respiratory failure pending
white Unknown pending
. blood in cell. no Inconclusive pending
explanation as yet
white struggled to put on Inconclusive pending
handcuVs and CS used
twice

7. Memorandum from the Prisons and Probation Ombudsman for England and Wales
It may be helpful for members of the Joint Committee to know that, in its 2002 White Paper, Justice for
All, the Government said that it was considering whether to extend the remit of the Prisons and Probation
Ombudsman’s OYce to include the investigation of self-inflicted deaths in custody. Further to that
statement, the Home OYce has conducted a consultation exercise and proposals are expected to be put
before Ministers shortly.
My own view is that independent investigation will bring with it significant benefits. Public confidence
and the safeguards under Article 2 ECHR should both be enhanced. Investigations (and reports) should be
more consistent and of a higher quality. The focus can be less on whether the rules have been followed and
more on the merits of decisions. And it will be possible to look at the actions and inactions of decision-
makers outside prison as well as inside. Should the responsibility pass to me, I should also be looking at
ways to involve the bereaved families of those who have died.
That said, I commend the eVorts the Prison Service has made in recent years to improve the openness and
usefulness of its own investigations. Indeed, members of my oYce have been involved in several independent
advisory panels that the Prison Service has set up to review particular deaths.
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Ev 68 Joint Committee on Human Rights: Evidence

The Home OYce consultation exercise about extending my remit to deaths in custody has been both
fruitful and encouraging. A resource issue will have to be faced (at present, the costs of internal Prison
Service investigations are very largely opportunity costs alone). But if that is resolved, then I believe my
oYce would be well-equipped to take on the daunting responsibility of investigating deaths both in prisons
and of the residents of probation hostels.

I should prefer if that extension of responsibility came with a full array of statutory powers. However, as
a stage towards a full statutory system (if there is no room at present in the legislative timetable),
consideration could properly be given to an administrative scheme.

Members of the Committee should also be aware that, at the request of the Home Secretary, I am
currently leading an investigation of a death that occurred in August of a prisoner at HMP Styal. My terms
of reference also require me to consider that death in the context of five other deaths to have occurred at
Styal over the past year.

This is the first time that the investigation of a death in a British prison has been independently conducted.
I believe my terms of reference are also unique so far as consideration of the other deaths is concerned.
Although features of this investigation are unlikely to be repeated if my remit were extended to all deaths,
my colleagues and I have learned a huge amount from the exercise.

More generally, I have views on the development of what I have termed “the Caring Prison”; in other
words, institutions in which prisoners and staV treat each other with respect and where suicide and self-harm
become less likely. Although overcrowding and the consequent “churn” of prisoners through the system
have undoubtedly exercised a malign eVect throughout the prison system in recent years, I decry those who
fail to acknowledge the significant changes for the better that have also occurred. I see this both in my direct
work as Ombudsman and in the many and regular visits I make to prison establishments.

I hope these thoughts are helpful. Either I or colleagues would be delighted to present evidence in person
should that be the wish of the Committee.
Stephen Shaw
Prisons and Probation Ombudsman for England and Wales
8 September 2003

8. Memorandum from Bail for Immigration Detainees

1. BID are a small charity that was established in 1998 to prepare and present bail applications on behalf
of asylum seekers and migrants in immigration detention. In the past five years, BID have obtained release
for over 500 detainees and have wide experience of the policies and procedures of immigration detention
and mechanisms for accessing an independent review of detention. Through BID’s three oYces (London,
Oxford and Portsmouth), we advise, represent and support people detained at any of the UK detention
centres. The organisation has four paid staV and around 20 casework volunteers. Between August 2001 and
July 2002, 790 detainees sought advice or assistance from BID. BID went on to prepare bail applications
for 492 people. 246 bail applications or other applications for release were made, for people from countries
including Zimbabwe, Uganda, India, China, Afghanistan, Cameroon, Colombia and Algeria. BID aim to
increase the number of legal representatives who conduct bail applications for their clients, through training,
information and raising awareness. In 2003, BID published a “Notebook on Bail” for detainees and were
asked to write a Best Practice Guide to Challenging Immigration Detention for practitioners, which is to be
published shortly by the Immigration Law Practitioners Association, the Legal Services Commission and
the Law Society. Based on our casework experience, BID conduct campaigning, policy and research work
targeting policy shapers and decision makers. BID aim to encourage the government to consider more
proportionate, humane alternatives to detention and campaign for international and domestic human rights
standards to apply to immigration detention in the UK.64

2. BID welcome the inclusion of immigration detention facilities in the remit of the JCHR’s inquiry into
deaths in custody. The information provided below focuses on the “preventing deaths in custody” part of
the inquiry. We do not have the relevant expertise to make submissions regarding investigating deaths.
Sections of this paper are based on information that has also been submitted to the Department for
Constitutional AVairs in response to the consultation on proposed caps on legal aid for asylum seekers and
migrants.65

64 In particular, the UN Convention on the Rights of the Child, the UNHCR Guidelines on applicable Criteria and Standards
relating to the Detention of Asylum Seekers (1999) and the European Convention on Human Rights.
65 See “Bail for Immigration Detainees, response to legal aid consultation, August 2003”.
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3. BID have represented a significant number of detainees who have attempted suicide and self-harm. We
are also aware that there have been several suicides in immigration detention in the past few years.66
Significant numbers of those we represent have serious medical and psychological needs which, in our
experience, are not adequately met in detention centres. Further, a significant number of detainees have
reported to BID that they have suVered injuries in detention at the hands of escort companies and
detaining oYcers.
4. BID is opposed to arbitrary and unnecessary use of immigration detention and believe that there are
alternatives to detention, such as reporting requirements. It is BID’s experience that immigration detention
is used unnecessarily, arbitrarily, for unacceptable lengths of time and for vulnerable people. BID’s concerns
about detention policy are set out in detail in our 2002 Submission to the UN Working Group on Arbitrary
Detention (not printed here). In summary, BID’s key concerns about immigration detention are as follows:
— Primary legislation which is silent on the presumption in favour of liberty.
— No statutory time limit on the duration of detention.
— No automatic review of detention by an independent body capable of considering the lawfulness
and appropriateness of the initial detention decision or the need to maintain detention.
— A failure to consider alternatives to detention, such as reporting restrictions.
— The requirement for sureties as a precondition of bail (and bail applications) for asylum seekers
who frequently have no family or contacts in the UK who are able to stand surety for them.
— The application of a “merits test” for the use of public funds for legal representation in bail
applications.
— A failure on the part of the UK Immigration Service (UKIS) to properly inform detainees of the
detailed reasons for detention and to routinely disclose UKIS reviews of the detention decision.67
— A failure on the part of the UKIS is to abide by the principle of “equality of arms” by refusing to
disclose documentation relating to the reasons for detention or the reasons for maintaining
detention.
— The reluctance of Adjudicators of the Immigration Appellate Authority (IAA) to consider the
European Convention of Human Rights in bail applications.
— The lack of any appeal right against a negative bail decision by an Adjudicator of the IAA.
— The paucity of research into detention and bail leading to decision-making by the Immigration
Service and courts which is not evidence-based. This results in flawed initial decision-making by
the UKIS and flawed bail decisions by the IAA.
— The use of immigration detention for children and children in families, pregnant women, those
with serious mental and physical health problems and those who have experienced torture,
including rape.
5. BID believe that the prevalence of suicide and self-harm attempts in detention is a direct and inevitable
result of the current policy and practice of immigration detention. We are also concerned that the heavy
handed approach of escort services and detaining authorities may result in deaths during the process of
detention and of attempted removal.
6. Detention policy is mostly contained in the Operational Enforcement Manual (OEM), chapters 38 and
39. The OEM applies to enforcement departments of the Home OYce68. The Operational Enforcement
manual (“OEM”) sets out, at paragraph 38.8, categories of people “normally considered suitable for
detention in only very exceptional circumstances”. These categories are:
— Those suVering from serious medical conditions or the mentally ill.
— Those where there is independent evidence that they have been tortured.
— Pregnant women, unless there is the clear prospect of early removal and medical advice suggests
no question of confinement prior to this.
— Unaccompanied minors.
— The elderly, especially where supervision is required.
— Those with serious disabilities.

66 For example, on 31 January 2003, Mikhail Bodnarchuk, a Ukrainian who had been detained at Haslar for four months,
committed suicide. It is BID’s understanding that Mr Bodnarchuk did not have a legal representative to submit an appeal on
his behalf and that he was wrongly accused by the Immigration Service of claiming asylum in two identities. He was due to
be returned to Ukraine on 31 January 2003. Early on the morning of January 31 he killed himself.
67 The requirement to give reasons for continued detention is contained in the Detention Centre Rules which came into force in

April 2001. In BID’s experience, this Rule is often ignored by the Immigration Service.
68 BID understand that similar policy is set out in Immigration Directorate Instructions (“IDIs”) on ports. However the IDIs

have never been disclosed.


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Ev 70 Joint Committee on Human Rights: Evidence

It is BID’s view that these guidelines fail to protect vulnerable groups most likely to be at risk of suicide
and self-harm—vulnerable groups such as torture survivors, those with serious mental and physical health
problems and disputed minors. In BID’s experience69, groups such as these are detained.

7. Once a person with a serious medical condition or particular health needs is detained, the detention
centre has certain statutory obligations. These are set out in the Detention Centre Rules (DCR 2001). Rule
35 DCR 2001 contains the duties of medical staV at the detention centre70. However, it is BID’s experience
that this rule is not operating correctly. BID have been involved in cases in which medical reports, for
example expressing serious concerns that continued detention would be detrimental to a detainee’s well
being or that there was a risk of suicide, have not been forwarded by the Medical Practitioner to the manager
of the centre or to the Immigration Service. Indeed, information given by medical staV at Harmondsworth
in a “Stakeholder meeting” on 9 April 2003 indicated that there was not a clear procedure for passing
medical reports from the GP to the Centre Manager to Immigration, particularly if the report has not been
commissioned by healthcare. It was indicated that a report stating that further detention was injurious to
health, a statement to this eVect would be passed to the centre manager who should then pass this on to the
IS. The report itself would not be sent. This comment is consistent with our experience in a number of cases
where vital medical information has not been passed to the manager of the centre and therefore it has not
reached the Immigration Service file. In one case, a mother was detained with her young child for over five
months, continuing even when the detention medical centre expressed concerns about the stress caused to
the mother by caring for her child in detention and the eVect of the stress on the child’s well-being and safety.

8. In BID’s experience, in some cases detention has lead to a deterioration of the detainee’s mental health.
Eventually, detainees are released for psychiatric treatment when the detention centre medical teams are
unable or unwilling to care for them.

Case Study71

A young woman, “I”, overstayed her student visa and was detained. She then sought asylum as she had
been severely traumatised by experiences in her country of origin. She remained detained awaiting an appeal
during which time her mental health deteriorated. “I’s” legal representatives took the view that two sureties
would be required for a bail application and as she had only one, they felt unable to present a bail
application. Her mental health deteriorated further and the medical team at the detention centre referred
“I” to the local Area Health Authority psychiatric team where she was diagnosed as suVering from post
traumatic stress disorder (PTSD). Despite this, the Immigration Service maintained detention in breach of
their instructions regarding detention of the mentally ill. BID sought bail on several occasions but was
forced to withdraw due to problems with sureties. Finally, a successful application was made with one surety
who had met “I” briefly. Bail was granted with one surety oVering £500. This was the first bail application
that had been heard in four months of detention.

9. The detention of people at risk of suicide or self harm in immigration detention contrasts with the
Home OYce guidelines to Courts, the Police and the Probation Service on the detention of mentally
disordered oVenders which state:
“Courts are asked to ensure that alternatives to custody are considered for all mentally disordered
persons, including bail before sentence, and persons who are in need of medical treatment are not
sent to prison.”72

69 See “A Crying Shame: Pregnant asylum seekers and their babies in detention”, McCleish, J, Cutler, S & Stancer, C, Maternity
Alliance, Bail for Immigration Detainees & London Detainee Support Group, September 2002 and “Protection Not Prison:
Torture Survivors detained in the UK”, Dell, S & Salinsky, M, Medical Foundation for the Care of Victims of Torture, 1999.
70 Rule 35 Detention Centre Rules 2001

“(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be
injuriously aVected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal
intentions . . .
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have
been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it,
and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”
These statutory obligations are relevant where a detainee’s
— mental or physical health is being harmed by detention
— needs treatment for mental health problems
— is considering or attempting self harm or suicide
— is a victim of torture or rape
— And has requested assistance from the medical centre.
71 This case study was referred to in BID’s submission to the UN Working Group on Arbitrary Detention, September 2002.
72 MNP/90 1/55/8.
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10. In detention there may be some access to mental health services but this varies between centres. In A
Second Exile: the Mental Health Implications of Detention of Asylum seekers, the author, a psychiatrist,
considers both the eVect of detention on mental health and the care available for those who have mental
health needs. The report, based on in-depth interviews, concluded that:
“Detention creates trauma regardless of previous traumatic experiences producing anxiety,
depression, isolation and so on, all components of traumatic experience. It was felt that such
trauma may be worse than what may have been previously endured.”73
The report also identified that the indefinite nature of detention was a particular cause of mental stress.
11. In addition to the above points, we wish to draw the attention of the committee to the following policy
aspects of detention, which we believe illustrate the absence of meaningful human rights for immigration
detainees.
(a) Use of detention for people who have just arrived and for those who have rights of appeal outstanding:
The power to detain applies to all asylum seekers and migrants, is without time limit and is not
automatically subject to independent review.74 The government does not make available statistics
as to the status of detainees’ cases, however it is BID’s experience that significant numbers are
detained on arrival, with appeals outstanding and for lengthy periods (many months) awaiting
travel documents. The use of detention under these circumstances prolongs detention and
therefore gives rise to mental health concerns.
(b) Absence of automatic, independent review of detention and maintaining detention: There are serious
inadequacies in the process for applying for bail under existing legislation, which result in
significant numbers of detainees being unable to access judicial oversight of detention. A brief
survey of BID cases between February and July 2002 showed that in 79% of bail applications, the
application by BID was the first time that an independent review of detention had taken place. The
average length of time without review by a court, before the first bail application by either BID or
a solicitor was approximately 16 weeks, or four months. The average total duration of detention
was 20 weeks, or five months. Previous legislation that made automatic provision for bail
applications was never implemented and was repealed by the 2002 Nationality, Immigration and
Asylum Act. Considering the repeal of automatic bail hearings, the report of the Joint Committee
on Human Rights into the NIA Bill accepted that “safeguards are meaningful and eVective only
if appropriate legal advice and information are available to detainees”75 and concluded that “these
matters should be carefully monitored . . . [as to the] eVectiveness of safeguards for the human
rights of detainees.” The Minister, Beverley Hughes MP, has stated that an automatic mechanism
for bail was unnecessary “. . . in the light of the fact that people can through their representatives
apply for bail at any time at all seemed an unnecessary bureaucracy”76. The comment by the
Minister that independent review by a court is “an unnecessarily stringent safeguard and one that
is actually unnecessary” demonstrates an alarming complacency on behalf of the government
whose current policy and practice in relation to detention disregards protection of the fundamental
principle of liberty and fails to acknowledge that large numbers of detainees are not represented.
(c) Inadequate access to legal representation and a sense of isolation, disempowerment and hopelessness:
It is BID’s experience that significant numbers of detainees do not have access to good
representation or may have no representation at all. This issue was raised as a matter of concern
by HM Inspectorate of Prisons in April 2003, particularly in relation to Lindholme77 and Haslar.
The report about Dungavel states “Access to quality legal representation and information about
the progress of their cases was poor and these factors aVorded little protection against the
damaging eVect of unanticipated and indeterminate detention.” BID’s existence is evidence that
eVective, good-quality immigration representation is not adequately accessible from detention
centres. Where an individual is unable to access representation and has lost hope in the justice of
the determination system, suicide and self-harm issues are more likely.
BID are particularly worried about the potential impact of the proposed cuts to legal aid for
asylum seekers and migrants, announced by the Government in June 2003. If these proposals are
implemented, there will be an even greater number of detainees who are not represented.

73 A Second Exile: The Mental Health Implications of Detention of Asylum-seekers in the United Kingdom, Pourgourides, C
K, Sashidharan, S P, Bracken, P J, Northern Birmingham Mental Health Trust, 1996, p 66.
74 The provision for automatic bail hearings contained in the 1999 Immigration and Asylum Act was repealed in 2002.
75 Nationality, Immigration and Asylum Bill, Seventeenth Report of Session 2001–02, House of Lords, House of Commons, Joint

Committee on Human Rights HL Paper No 132, HC 961, p 32.


76 Oral submissions to the Home AVairs Committee on 4 March 2003 Ev. 682.
77 “The questionnaire revealed that after a few days at Lindholme the vast majority of detainees (75%) did not know how to

obtain legal advice or get a solicitor. Over a quarter (27%) were without representation, and only a third (37%) of these knew
how to obtain legal advice . . . A significant proportion of detainees had no legal representation and the majority of the un-
represented did not know how to obtain legal advice. Of those who were represented, a number appeared to be receiving an
inadequate service, and access time for legal representatives was restrictive. There was evidence of detainees being exploited
by unscrupulous representatives.” HM Inspectorate of Prisons, Inspection of Lindholme Removal Centre, March 2002,
published April 2003.
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Ev 72 Joint Committee on Human Rights: Evidence

(d) Continued use of prisons: The UK detains between 1,300 and 2,000 people under immigration act
powers at any one time. Home OYce statistics show that at 29 March 2003, 19% (255 people) of
the 1,355 people detained solely under immigration act powers were held in criminal prisons. This
is despite a government commitment in October 2001, that the use of criminal prisons would
cease.78 BID is concerned that the use of criminal prisons for asylum seekers and migrants leads
to an increased risk of suicide and self-harm.
(e) An aggressive, target-let removals policy: In BID’s experience, removal is being attempted of
people who have a valid claim, or whose claim has not yet been heard. Wrongful attempts at
removal increase the risk of violent treatment and inappropriate restraint methods being
employed. The HM CIP report on Dungavel notes that detainees may have “. . . diYculty
accessing competent legal advice which may prevent their removal to an unsafe country or
situation”. Our concern is that the use of immigration detention in its current form obscures the
reality of the process of removal, making it extremely diYcult to assess whether removals are being
conducted as humanely as possible and with due, independent regard to any compassionate factors
in the particular case. The pursuance of a removal “target”, whether explicitly stated as a figure
per month, or implicit in the whole emphasis of the asylum process, is impacting upon the way in
which removals are attempted and indeed upon who is detained in the first place. This is resulting
in the removal of individuals and families without proper legal advice or adequate representation,
without consideration of compassionate factors; in short without due process. If removal becomes
the overriding goal in immigration control, rather than a fair consideration of the case, there is a
risk that detention will be employed for vulnerable people ie detention criteria which state that
vulnerable people are normally unsuitable for detention other than in exceptional circumstances
are being overridden. This is illustrated by the frequent use of detention for those acknowledged
to be suVering mental illness and survivors of rape and torture. Detention in these cases is not being
employed as a “last resort” immediately prior to removal, but often from arrival. BID is concerned
that a significant number of detainees report violent and abusive treatment at the hands of security
guards and escorts, including racist abuse.
12. BID believe that urgent action is required to implement a human rights approach to the use and
management of immigration detention. Significant changes in policy and practice must be introduced in
order to reduce the incidence of self-harm and suicide and deaths in immigration detention. The use of
immigration detention is now widespread and the Government have indicated that they wish to expand the
detention estate to comprise 4,000 places, an increase from around 250 spaces a decade ago.79 However, BID
wishes to emphasise that immigration detainees are not charged with a criminal oVence. They are detained
for the administrative convenience of the state. Whilst BID urge the Government to fully uphold its duty
of care towards those whose liberty it denies, we also wish to record our concern that there is an over use
of detention. There must not be a “sticking plaster” approach to dealing with the inevitable consequences
of detention policy, which include self-harm and suicide. A focus on procedures and safeguards that reduce
incidence of harm should of course be in place, but should not obscure the need to review whether detention
practice itself is proportionate, necessary and acceptable in a human rights framework. In particular, we
wish to draw the attention of the committee to the following actions that BID believe the Government
should take.
(a) Implement and resource the recommendations of the recent reports of HM Inspectorate of
Prisons.
(b) Use detention in line with international, European and domestic human rights standards, in
particular with a maximum duration specified by law and automatic provision of independent
review.
(c) Improve access to legal advice and representation.
(d) Protect vulnerable people from detention by introducing statutory criteria for detention and
statutory instructions about who may not be detained.
13. Evidence given to the Home AVairs Committee investigation into asylum removals by the private
contractors operating detention facilities claimed that suicides were not taking place.80 However, in order
for parliament and the public to be able to eVectively scrutinise the incidence of harm, BID consider that it
would be an important development for regular statistics to be published as to the incidence of self-harm
and suicide.

78 In October 2001 the Government gave an undertaking that the detention of asylum seekers in prisons would cease as from
25 December 2001. However, the use of prisons was re-introduced after the fire at Yarl’s Wood Detention Centre on 14
February 2002. The Secretary of State, David Blunkett, on 24 February, stated that:
“. . . detainees with a history of violent or criminal behaviour and those considered a danger to safety have been transferred
to prison.”
BID is concerned that detainees are being transferred to prisons as a punitive measure. There is a lack of transparency and
accountability surrounding the process of movement of detainees to prisons. Neither detainees nor their legal representatives
are provided with the reasons for deciding that they represent a security risk. In several cases, detainees have been moved to
a prison for a number of weeks, then returned to a detention facility without explanation as to why they are no longer deemed
a risk.
79 See February 2002 White Paper, Secure Borders, Safe Haven.
80 Para 357, Tuesday 28 January 2003, Evidence to the Home AVairs Committee.
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Joint Committee on Human Rights: Evidence Ev 73

14. Finally, BID would like to draw attention to the recent report on immigration detention by the United
Nations Special Rapporteur on the human rights of migrants, published in December 2002.
The Special Rapporteur is concerned that in a considerable number of countries, measures aimed
at stopping irregular migration undermine migrants’ basic rights, including the right to seek
asylum and minimum guarantees against arbitrary deprivation of liberty.
In particular, there is a tendency to provide immigration oYcials with broad powers to detain
groups of migrants in conditions and facilities that seriously curtail their right to judicial or
administrative review of the lawfulness of detention and to have their asylum claims reviewed.
. . . the Special Rapporteur would recommend that . . . Governments should consider the
possibility of progressively abolishing all forms of administrative detention and, when this is not
possible, take measures to ensure respect for the human rights of migrants deprived of liberty81.

15 September 2003

9. Memorandum from the Committee on the Administration of Justice (CAJ)

Introduction

CAJ have been active on the issue of inquests for many years. Our focus has predominantly related to
deaths caused by the security forces or where there have been allegations of collusion but we have also
provided advice and assistance to others.

The starting point for our critique of the system has been the extent to which it does not conform to
international human rights standards, both the European Convention on Human Rights, the International
Covenant on Civil and Political Rights and other “soft law” international standards. In the mid and late
1990s we were approached by a number of families who had just completed their inquests and were at a loss
as to how to proceed. We advised them to take their cases to the European Court of Human Rights arguing
that the UK had violated the procedural aspect of Article 2 of the Convention guaranteeing an adequate ex
post facto investigation of a killing involving the state. We lodged the cases in Strasbourg and acted as
lawyers for the families before the Court, culminating in the successful judgments of Kelly et al v UK,
Shanaghan v UK and more latterly McShane v UK.

The cumulative eVect of these judgments in our view obliges the UK government to completely overhaul
the way in which these cases are investigated should they occur in the future. The judgments are of course
not restricted to the issue of inquests. They involve the police, the DPP, and the police complaints system.
However, it is equally clear that major change must occur within the coronial system in Northern Ireland
in order to ensure that it complies with Article 2, which of course is now domestic legislation by way of the
Human Rights Act.

In this context we were disappointed to see no mention of Northern Ireland in the Call for Evidence from
the Joint Committee. While the Inquiry relates to deaths in custody we believe that any such inquiry should
also look to deaths caused by the state, particularly in the context of the adequacy of investigations. Our
comments relate primarily to the procedural aspect of Article 2 and while they are grounded in the
experience of Northern Ireland, we believe they have relevance for England and Wales.

It is also of course the case that there have been and continue to be prison deaths in Northern Ireland.
Inquests, which we have observed into a number of these deaths, suggest that prison authorities in Northern
Ireland are no better equipped at dealing with vulnerable prisoners than their counterparts in Britain.

81 “Specific Groups and Individuals: Migrant Workers—Report of the Special Rapporteur”, Ms Gabriela Rodriguez Pizarro,
submitted pursuant to Commission on Human Rights resolution 2002/62 E/CN.4/2003/85, 30 December 2002.
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Ev 74 Joint Committee on Human Rights: Evidence

Interpretation Of The Right To Life Provisions


In the cases of Kelly v United Kingdom82, Shanaghan v United Kingdom83, Jordan v United Kingdom84
and McKerr v United Kingdom,85 the European Court of Human Rights took the opportunity to clarify
the exact parameters and criterion required for an investigation to comply with Article 2 of the Convention.
In the “landmark judgment(s)”86 the Court made specific reference to various provisions of UN “soft
law”87 and in summary concluded that the UK had breached Article 2 on the procedural ground on the basis
of the:
— Lack of independence of the police investigation, which applies to police killings (Jordan,
McKerr), army killings (Kelly), and cases of alleged collusion (Shanaghan).
— The refusal of the DPP to give reasons for failing to prosecute.
— Lack of compellability of witnesses suspected of causing death.
— Lack of verdicts at the inquest.
— Absence of legal aid and non-disclosure of witness statements at the inquest.
— Lack of promptness in the inquest proceedings.
— The limited scope of the inquest.
— Lack of prompt or eVective investigation of the allegations of collusion.
In addition to this:
What form of investigation will achieve those purposes may vary in diVerent circumstances. However,
whatever mode is employed, the authorities must act of their own motion, once the matter has come to their
attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to
take responsibility for the conduct of any investigative procedures88.
The next-of-kin must be adequately involved in the investigative proceedings also to the extent that it
safeguards his or her legitimate interests89. IneVective securing of evidence will hamper the establishment of
the cause of death or the person responsible and, thus, would constitute a breach of article 290.

Scope of the Inquest


The purpose of an Inquest is to inquire into unexpected, unexplained or suspicious death so that the facts
may be ascertained and the public assured that any necessary action by the authorities is promptly taken to
ensure that similar avoidable deaths do not occur in the future.91
Rule 15 of the 1963 Rules sets out the precise ambit of the Inquest92:
The proceedings and evidence at the inquest shall be directed solely to ascertaining the following
matters, namely:
(a) who the deceased was;
(b) how, when and where the deceased came by his death;
(c) the particulars for the time being required by the Births and Deaths Registration (Northern
Ireland) Order 1976 to be registered concerning the death.

82 Kelly v UK, Application No 30054/96, Judgment of 4 May 2001.


83 Shanaghan v UK, Application No 37715/97, Judgment of 4 May 2001.
84 Jordan v UK, Paragraph 95, Application No 24746/94, Judgment of 4 May 2001.
85 McKerr v UK, Application No 28883/95, Judgment of 4 May 2001.
86 Amnesty International News Report, AI Index EUR 45/010/2001. See also comments of Nuala O’Loan (Irish Times October

11 2001 page 8) this judgment “will be the greatest challenge to most existing police complaints system(s) in Europe”. “Recent
events in London, with the Lawrence case, and in Ireland, with the Abbeylara case, have shown that there is a demand for
openness, transparency and independence in the investigation of allegations of misconduct by the police. I believe this can
lead to an enhanced police service.”
87 See Kelly v UK, Application No 30054/96, Judgment of 4 May 2001. Reference was made to The United Nations Basic

Principles on the Use of Force and Firearms by Law Enforcement OYcials (UN Force and Firearms Principles) (adopted on
7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of OVenders)
Paragraph 21, 22. United Nations Principles on the EVective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions (adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65), Paragraph 9, 10-
17. The “Minnesota Protocol” (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions,
contained in the UN Manual on the EVective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions), Section B “Purposes of an inquiry”.
88 Kelly v UK, Paragraph 94, Application No 30054/96, Judgment of 4 May 2001. See also Ilhan v Turkey, Paragraph 63, ECHR

2000-VII, Judgment of 27 June 2000.


89 Güleç v Turkey, Paragraphs 82, Reports 1998-IV, Judgment of 27 July 1998 (where the father of the victim was not informed

of the decisions not to prosecute); Ögur v Turkey, Paragraphs 92, Application No. 21954/93, ECHR 1999-III.
90 Salman v Turkey, Paragraph 106, ECHR 2000-VII, Judgment of 27 June 2000, Tanrikulu v Turkey, Paragraph 109, ECHR

199-I, Judgment of 8 July 1999.


91 See British Irish Rights Watch, Current Developments in Inquests in Britain and Ireland: Record of Proceedings, (June 1992).
92 The equivalent English provisions are S.11(5) of the Coroners Act 1988 and Rule 84, Coroners (Practice and Procedure)

Rules 1988.
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Joint Committee on Human Rights: Evidence Ev 75

It would appear on a cursory reading of the foregoing, that the scope for determination of the
circumstances surrounding a death is quite broad. However, Rule 15 has been greatly constrained by two
factors.

Firstly, Rule 15 is subject to the provisions of Rule 16 which provides that:


Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability
or on any matters other than those referred to in the last foregoing rule.

Secondly, the construction of the word “how” has been construed in a very narrow form by the judiciary,
to exclude the possibility of a true appraisal of the question.

In the Northern Ireland Courts in In Re: Bradley and Larkens Application93 Justice Carswell stated:
The word “how” means “by what means” rather than “in what broad circumstances”. The enquiry
must focus on matters directly causative of death. . .It should not embark on a wider inquiry
relating to the background circumstances of the death; it is not its function to provide the answers
to all the questions, which the next of kin may wish to raise.

Thus, it is apparent from the foregoing cases that a full consideration of the broad circumstances in which
the deceased came by his/her death is firmly held to be not within the competence of the Coroners Court94.

In the decision of Shanaghan v United Kingdom95, the Court specifically criticised the fact that the scope
of the examination of the Inquest excluded the family’s concern of alleged collusion by security force
personnel in the targeting and killing of Patrick Shanaghan:
The domestic courts appeared to take the view that the only matter of concern to the inquest was
the question of who pulled the trigger, and that, as it was not disputed that Patrick Shanaghan was
the target of loyalist gunmen, there was no basis for extending the enquiry any further into issues
of collusion. Serious and legitimate concerns of the family and the public were therefore not
addressed by the inquest proceedings.

In case of McKerr v United Kingdom96:


Serious concerns arose from these three incidents as to whether police counter-terrorism
procedures involved an excessive use of force, whether deliberately or as an inevitable by-product
of the tactics that were used. The deliberate concealment of evidence also cast doubts on the
eVectiveness of investigations in uncovering what had occurred.

Therefore, the Court concluded that, notwithstanding the existence of a criminal trial running parallel
with the Inquest, Article 2 may require a wider consideration of the possibility of excessive use of force by
the security forces. The Court went beyond the dicta of the domestic Courts by looking to the underlying
objective of the inquest, that of re-assuring the public and the members of the family as to the lawfulness of
the killings. It concluded that due to the fact such a purpose had not been accomplished by the criminal trial,
the positive obligations inherent in Article 2 required an adequate procedure whereby such doubts could be
addressed97.

In cases like that of McCann v United Kingdom98 it is clear that issues relating to the planning and control
of the operation which leads to the death must be included within the scope of the inquest. Indeed, the
Coroner for Belfast in the Jordan case has now accepted, as a matter of principle that such matters lie within
the proper scope of the inquest99.

The investigation must focus upon (a) not only those who were allegedly directly responsible for the death,
but (b) the planning and organisation of the state agency or operation that provided the context in which
the deaths took place and any systemic deficiencies therein100 Where appropriate it must also indicate those
who were responsible101.

93 [1994] NI 279. See also Hutton LCJ in Re Ministry of Defence’s Application, [1994] NI 279, 307, Simon Brown LJ in R v HM
Coroner for Western District of East Sussex, ex p Homber (1994) 158 JP 357,369.
94 Thus in the McKerr case the judge held that the Coroner was not entitled to attempt to ally allegations of a “shoot to kill”

policy by examining the “broad circumstances” in which the deceased had met their deaths (unreported QBD (Crown Side),
11 July 1994).
95 Paragraph 111, Application No 37715/97, Judgment of 4 May 2001.
96 Paragraph 137, Application No 28883/95, Judgment of 4 May 2001.
97 Id.
98 Series A No 324, Judgment of 27 September 1995.
99 See Treacy, Seamus, Article 2 and the Future of Inquests in Northern Ireland: A Practitioner’s Perspective, (Transcript from

CAJ and British Irish Rights Watch, Inquest Seminar dated 23 February 2002).
100 Andronicou and Constantinou v Cyprus, Reports 1997–VI, McCann and Others v the United Kingdom, Series A No 324,

Judgment of 27 September 1995.


101 Jordan v United Kingdom, Application No 24746/94, Judgement of 4 May 2001, Ögur v Turkey, Paragraph 88, Judgment of

20 May 1999, Application No 21594/93.


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Ev 76 Joint Committee on Human Rights: Evidence

Adjournment/Delay

Great concern has been expressed over the inordinate delays in the commencement of Inquest proceedings
in Northern Ireland102. This is particularly disturbing in cases involving allegations of systemic deficiencies
which remain unaddressed for such a long period of time.
The Coroner must decide whether or not to hold an inquiry without delay and the inquiry must be held
“as soon as practicable” after the coroner has been notified of the death103.
As a matter of practice, inquests in Northern Ireland do not commence, until the Coroner is informed by
the police or the DPP, that they may open proceedings. This practice eVectively nullifies the applicability of
the provisions of the Coroners Rule in that the Coroner is powerless to control the timing of the Inquest.
This has a significant eVect on the eYciency and promptness of the process.

By way of contrast, in England the inquest is opened and then readjourned104 where criminal prosecution
is imminent. In this way, the Inquest will be in advance of ultimate decision on prosecution. The British
practice reflects the underlying purpose of the rules by making it clear that the Coroner is in control and the
police can be summonsed to give account for themselves if there is an unreasonable delay.
Whereupon a criminal charge is brought on account of the death, the Inquest in Northern Ireland is
postponed until the conclusion of all criminal proceedings, including appeal105. In contrast, In England and
Wales, adjournment is only until the conclusion of the trial.
In the decision of Jordan v United Kingdom106, the Court stated at Paragraph 108 that:
A requirement of promptness and reasonable expedition is implicit in this context (see the Yasa v
Turkey judgment of 2 September 1998, Reports 1998-IV, pp 2439–2240, HH 102–104; Cakici v
Turkey cited above, H 80, 87 and 106; Tanrikulu v Turkey, cited above, H 109; Mahmut Kaya v
Turkey, no. 22535/93, [Section I] ECHR 2000-III, HH 106–107). It must be accepted that there may
be obstacles or diYculties which prevent progress in an investigation in a particular situation.
However, a prompt response by the authorities in investigating a use of lethal force may generally
be regarded as essential in maintaining public confidence in their adherence to the rule of law and
in preventing any appearance of collusion in or tolerance of unlawful acts.
In this decision the Court also refer to Paragraph 9 of the United Nations Principles on the EVective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions107 which states inter alia
that:
There shall be a thorough, prompt and impartial investigation of all suspected cases of extra legal,
arbitrary and summary executions, including cases where complaints by relatives or other reliable
reports suggest unnatural death in the above circumstances . . . (emphasis added)

In Shanaghan v United Kingdom108 the Court were highly critical of the delay in the proceedings:
The inquest opened on 26 March 1996, more than four and a half years after Patrick Shanaghan’s
death. The Government explained that the delay in the RUC sending the file to the Coroner on 14
January 1994 resulted from their heavy criminal workload. The Court does not find this a
satisfactory explanation for failure to carry out a transfer of documents for an important judicial
procedure. No explanation, beyond unspecified further enquiries, has been forthcoming for the
delay after the transfer of the file. Once the inquest opened, it proceeded without delay, concluding
within a month. In the circumstances, the delay in commencing the inquest cannot be regarded as
compatible with the State’s obligation under Article 2 of the Convention to ensure that
investigations into suspicious deaths are carried out promptly.

102 For example, The McKerr Inquest was not opened for six years and was adjourned in 1988 pending appeal. English practice
has also been subject to such criticism. See also British Irish Rights Watch, Current Developments in Inquests in Britain and
Ireland: Record of Proceedings, (June 1992) which alleges that the average delay in Inquest proceedings is 10 years.
103 Coroners (Practice and Procedure) (Northern Ireland) Rules 1963, Rule 3. In England and Wales this requirement is under

Coroners Act 1988, s. 8(1).


104 Coroners (Practice and Procedure) Rules 1988.
105 Coroners (Northern Ireland) Act 1959, Section 13(1) and (6).
106 Application No 24746/94, Judgment of 4 May 2001. See also Kelly v United Kingdom, Application No 30054/96, Judgment

of 4 May 2001, Paragraph 97, McKerr v United Kingdom, Paragraph 114 Application No 28883/95, Judgment of 4 May 2001
Yasa v Turkey, Paragraphs 102–104, Reports 1998-IV, Judgment of 2 September 1998, Çakici v Turkey, Paragraphs 80, 87,
ECHR 1999—IV, Tanrikulu v Turkey, Paragraph 109, ECHR 1999—I, Judgment of 8 July 1999, Kaya v Turkey, Paragraph
106–107, ECHR 2000—III.
107 Adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65.
108 Paragraph 119–120, Application No 37715/97, Judgment of 4 May 2001.
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Compellability

Rule 9(2) of the Coroners (Practice and Procedure) Rules 1963109 is an exception to the general rule that
all persons who are competent to give evidence at an inquest are compellable to do so. Under this rule a
person “suspected of causing the death or has been charged or is likely to be charged with an oVence related
to the does not have to appear.”110
The position in Northern Ireland with regard to the non-compellability of key witnesses was specifically
criticised in the decision of Jordan v United Kingdom111 at Paragraph 127:
In inquests in Northern Ireland, any person suspected of causing the death may not be compelled
to give evidence (Rule 9(2) of the 1963 Coroners Rules, see paragraph 68 above). In practice, in
inquests involving the use of lethal force by members of the security forces in Northern Ireland,
the police oYcers or soldiers concerned do not attend. Instead, written statements or transcripts
of interviews are admitted in evidence. At the inquest in this case, Sergeant A informed the Coroner
that he would not appear. He has therefore not been subject to examination concerning his account
of events. The records of his two interviews with investigating police oYcers were made available
to the Coroner instead (see paragraphs 19 and 20 above). This does not enable any satisfactory
assessment to be made of either his reliability or credibility on crucial factual issues. It detracts
from the inquest’s capacity to establish the facts immediately relevant to the death, in particular the
lawfulness of the use of force and thereby to achieve one of the purposes required by Article 2 of the
Convention (see also paragraph 10 of the United Nations Principles on Extra-Legal Executions
cited at paragraph 90 above).
The Court also makes reference to the “soft law” UN United Nations Principles on the EVective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions112, Principle 10 of which
states that:
The investigative authority shall have the power to obtain all the information necessary to the
inquiry. Those persons conducting the inquiry . . . shall also have the authority to oblige oYcials
allegedly involved in any such executions to appear and testify.
Rule 9(2) was subjected to similar criticism in the case of McKerr v United Kingdom113 and Kelly v United
Kingdom114. In the domestic case of In Re: Jordans Application115, McKerr J. at Page 6, stated that “the
decision clearly called for the removal of the exemption in Rule 9(2), therefore”.
In light of the European Court of Human Rights, the Lord Chancellor has since amended Rule 9. The
amended Rule 9 reads as follows:
9(1) No witness at an inquest shall be obliged to answer any question tending to incriminate
himself or his spouse
9(2) Where it appears to the coroner that a witness has been asked such a question, the Coroner
shall inform the witness that he may refuse to answer the question
As is apparent from above, the old rule pertaining to the privilege against self-incrimination, which had
always functioned adequately in England and Wales to protect the rights of the potential accused, have been
retained. While we welcome the changes in relation to non-compellability, we are concerned that the
continued existence of the right against self-incrimination will undermine the changes in that police oYcers
and soldiers will refuse to answer any questions relating to the actual killings or indeed the planning of the
security operation which led to the deaths.
We believe there are alternative ways in which the rights of soldiers and police oYcers can be protected
while still ensuring the integrity of the fact finding nature of the inquest. For instance, soldiers giving
evidence to the Saville inquiry have been guaranteed that their evidence will not be used against them in any
subsequent trials. We believe that this approach could be adopted in relation to article 2 inquests.

109 Rule 9(2) has since been repealed by the Lord Chancellor.
110 The formulation of this Rule is in line with the recommendations of the Brodrick Committee which recommended that “where
a person is suspected of causing the death he should not be called and put on oath unless he so desires and should not be cross
examined”. It is noteworthy that this recommendation was not followed with regard to the Coroner’s practice in England
and Wales.
111 Application No 24746/94, Judgment of 4 May 2001.
112 Adopted on 24 May 1989 by the Economic and Social Council Resolution 1989–65.
113 Paragraph 144. Application No 28883/95, Judgment of 4 May 2001. Sergeant M and oYcers B and R were therefore not

subject to examination concerning their account of events. Their statements were made available to the Coroner instead. This
did not enable any satisfactory assessment to be made of either their reliability or credibility on crucial factual issues.
114 Paragraph 121, Application No 30054/96, Judgment of 4 May 2001. “At the inquest in this case, none of the soldiers A to X

appeared. They have therefore not been subject to examination concerning their account of events. The records of their
statements taken in interviews with investigating police oYcers were made available to the Coroner instead (see paragraphs
16 to 23 above). This does not enable any satisfactory assessment to be made of either their reliability or credibility on crucial
factual issues”.
115 As yet unreported. See Justice Kerr, Article 2 and the Future of Inquests in Northern Ireland, (Transcript from CAJ and British

Irish Rights Watch, Inquest Seminar dated 23 February 2002).


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Ev 78 Joint Committee on Human Rights: Evidence

Independence of the Investigation


In both a domestic and European context the need for independence of investigation has been
addressed and the need highlighted116. In the cases of and Guluc v Turkey117 and Ögur v Turkey118, it
was stated that:
For an investigation into alleged unlawful killing by State agents to be eVective, it may generally
be regarded as necessary for the persons responsible for and carrying out the investigation to be
independent from those implicated in the events.
This means not only a lack of hierarchical or institutional connection but also a practical independence.119
This creates two problems in terms of Article 2 compliance in Northern Ireland. First, it is clear that
the police cannot carry out investigations into killings for which police oYcers were, or were suspected of
being responsible. The creation of the Police Ombudsman goes some way to solving this problem.
However in light of the Kelly judgment, it is also clear that the police cannot investigate army killings.
The Police Ombudsman does not resolve this problem because her powers are limited to the police. She
has no power to investigate the army. This applies equally to the situation regarding deaths in prison. In
our view it is clear that investigations by the prison service will in no way satisfy the independence
requirement of Article 2. It is also our view that a police investigation will similarly fall foul of Article 2
requirements.
Second, Coroners have in the past and continue to rely on the police investigation to obtain relevant
evidence. Under Section 11(1) of the Coroners (Northern Ireland) Act 1959 the Coroner is charged with
making “such investigations as may be required to enable him to determine whether or not an inquest is
necessary”. The police act on behalf of the Coroner to obtain relevant evidence. In theory, the coroner may
instruct the police, however,
It may not be appropriate for the Coroner to give such instructions where, for example, the death
is the subject of a murder inquiry. Coroners are usually content not to interfere in any criminal
investigation of that type, and to rely instead on the senior investigating oYcer advising on the
progress being made by the police.120
In the case of Ergi v Turkey121 a violation of Article 2 was found where the public prosecutor investigating
the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the
information provided by the gendarmes implicated in the incident. Thus, excessive reliance on the police or
other government bodies during an investigation may result in a finding of a breach of the State’s Article 2
obligations.
It is therefore clear that the Coroner can no longer rely on the police to conduct investigations in these
cases.

Verdicts
In England and Wales verdicts are available to Coroners and inquest juries. These include the possibility
of an unlawful killing verdict and a range of other possible verdicts.
Northern Ireland was curtailed in this regard in 1981 when the verdict was abolished and replaced with
“findings”. Therefore it is not open to a jury in Northern Ireland to bring a verdict of “unlawful killing” in
the case of a death by a member of the security forces122.
Rule 15 of the 1963 Rules pertaining to Northern Ireland sets out the precise ambit of the Inquest:
The proceedings and evidence at the inquest shall be directed solely to ascertaining the following
matters, namely:
(d) who the deceased was;
(e) how, when and where the deceased came by his death;
(f) the particulars for the time being required by the Births and Deaths Registration (Northern
Ireland) Order 1976 to be registered concerning the death.

116 See also Basic Principles on the Use of Force and Firearms by Law Enforcement OYcials, Principle 23 “persons aVected by
the use of force or firearms or their legal representatives shall have access to an independent process, including a judicial
process” and Principles on EVective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Execution. Principle
11 “an investigation must be independent and not governed by interests of any agency whose actions are the subject of the
scrutiny”.
117 Judgment of 27 July 1998, Reports 1998-IV, Paragraph 81–82.
118 Application No 21954/93, ECHR 1999-III, Paragraph 91–92.
119 See for example the case of Ergi v Turkey, Judgment of 28 July 1998, Reports 1998-IV, Paragraph 83–84 where the public

prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance
on the information provided by the gendarmes implicated in the incident.
120 Leckie & Greer in Coroner’s Law and Practice in Northern Ireland 90 (Northern Ireland: SLS Legal Publications) (1998).
121 Paragraph 83–84, Judgment of 28 July 1998, Reports 1998-IV.
122 The Gibraltar Inquest into the deaths of Mairead Farell, Daniel McCann and Sean Savage was at liberty to return such a

verdict in light of the fact that the Inquest was conducted in Gibraltar under Gibraltar Law.
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In the Northern Ireland Courts in In Re: Bradley and Larkens Application123 Justice Carswell stated:
The word “how” means “by what means” rather than “in what broad circumstances”. The enquiry
must focus on matters directly causative of death . . . It should not embark on a wider inquiry
relating to the background circumstances of the death; it is not its function to provide the answers
to all the questions which the next of kin may wish to raise . . . I am of the opinion that what was
contemplated by the word “findings” in the 1980 Rules was just such a brief encapsulation of the
essential facts, and that juries should be encouraged to confine their findings to statements of
that nature.

European Jurisprudence
The European Court of Human Rights has specifically indicated that an investigation of the violation
of the right to life must have the capacity to make findings indicating those responsible. In Kelly v United
Kingdom124, the Court stated at Paragraph 96 that:
The investigation must also be eVective in the sense that it is capable of leading to a determination
of whether the force used in such cases was or was not justified in the circumstances (eg Kaya v.
Turkey judgment, cited above, p. 324, H 87) and to the identification and punishment of those
responsible
Notwithstanding that the European Court specifically condemned the inquest procedure for not
permitting any verdict or findings the government and the Lord Chancellor have failed to amend the Rules
to enable a Coroner or his jury to bring a verdict.

Public Interest Immunity Certificates


Public Interest Immunity Certificates were specifically criticised in the case of McKerr v United
Kingdom125 in which the Court stated that:
[t]he Reports in any event dealt with the evidence of obstruction of justice, which was relevant to
the wider issues thrown up by the case. The Court finds that the inquest was prevented thereby
from reviewing potentially relevant material and was therefore unable to fulfil any useful function
in carrying out an eVective investigation of matters arising since the criminal trial.
The fundamental issue at hand here is, essentially, the balancing of a set of competing interests both in
the name of the public good; on one hand that of national security and on the other hand, the need for full
disclosure of evidence to support the proper administration of justice. It would appear, all too often, that
the scales have tipped too far the one way, ie national security. It does not serve the public interest when
documents, which may be relevant to revealing some systemic deficiencies within the police force, are
purposively withheld from determination at Inquest.
In its “package of measures” which it submitted to the Committee of Ministers in Strasbourg in response
to the judgments the UK government argued the judge in relevant cases (and presumably the Coroner in
inquests) should decide on what should be subject to the PII where the Minister was unsure. In recent
hearings in Northern Ireland however lawyers for the police and army have refused to disclose unredacted
documents to the Coroner. This in our view is simply unacceptable.
The balance should be in favour of disclosure. In the event that a PII is issued or being considered the
situation in relation to Coroners should be the same as obtains in criminal cases under the judgment of ex
parte Wiley.

International Soft Law Standards


The relevant “soft law” standards applicable to the area of Inquest systems, particularly with regard to
controversial deaths at the hands of security forces, are contained in the Basic Principles on the Use of Force
and Firearms by Law Enforcement OYcials126 and the United Principles on the EVective Prevention and
Investigation of Extra-Legal, Arbitrary and Summary Executions127 and the UN Manual on the EVective

123 [1994] NI 279. See also Hutton LCJ in Re Ministry of Defence’s Application, [1994] NI 279, 307, Simon Brown LJ in R v HM
Coroner for Western District of East Sussex, ex p Homber (1994) 158 JP 357, 369.
124 Application No 30054/96, Judgment of 4 May 2001. See also Jordan v UK, Paragraph 107, Application No 24746/94,

Judgment of 4 May 2001, McKerr v United Kingdom, Paragraph 113, Application No 28883/95, Judgment of 4 May 2001,
Ögur v. Turkey, Paragraph 88, Judgment of 20 May 1999, Application No 21594/93.
125 Paragraph 151, Application No 28883/95, Judgment of 4 May 2001. Public Interest Immunity Certificates were also referred

to in the case of Shanaghan v United Kingdom, Application No 37715/97, Judgment of 4 May 2001 at Paragraph 118. However,
because no certificate was issued in this case, the Court concluded that “(t)here is therefore no basis for finding that the use
of these certificates prevented examination of any circumstances relevant to the death of the applicant’s son”.
126 Adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of

OVenders.
127 Adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65.
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Ev 80 Joint Committee on Human Rights: Evidence

Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions128. The standards
contained therein are not strictly legally binding. However, they represent an important yardstick by which
a State may judge its adherence to the generally recognised principles applicable in the conduct of an
investigation into a suspicious death.
These principles were specifically referred to and given credence by the European Court of Human Rights
in the recent cases of Jordan v United Kingdom129, McKerr v United Kingdom130, Kelly v United Kingdom131:
and Shanaghan v United Kingdom132. This would certainly add weight to the binding force of these principles,
in light of the fact that they have been applied through the mechanism of the European Court.

Conclusion
The judgments from the European Court of Human Rights in May 2001 marked a watershed in the
development of Article 2 jurisprudence in Europe. In Northern Ireland we believe they should mark the
eVective demise of the discredited manner in which deaths caused by the state are investigated. A new
independent and eVective mechanism to inquire into Article 2 deaths is required.
We believe the most eVective way of dealing with such cases in the future may well be the creation of a
single entity to investigate such cases. It appears to us that, drawing on some of the thinking done by the
Luce Review team, a new level of coronial court might be established to deal with controversial cases while
either the old system or a more streamlined administrative model might deal with the less controversial cases.
Obviously there would need to be safeguards built into the system to ensure decisions as to which level a
particular case has been directed to could be subject to appeal. This new higher level of court could, in our
view, be tasked with investigating controversial deaths from the beginning, working in tandem with the
family and if necessary external investigators, and also ultimately with the DPP. Powers and resources could
be allocated accordingly. Public hearings would remain a central aspect of the investigation of these cases.
One further matter also needs to be addressed which is the failure of the DPP to provide reasons in Article
2 cases. In our view and in the view of the European Court of Human Rights such cases are “crying out for
an explanation” of the failure to prosecute.
That specific criticism and the others made by the Court in the European judgments need to be met in full.
— The investigations into article 2 killings need to be independent, carried out either by the Police
Ombudsman, another independent investigator for army killings or investigators appointed by the
Coroner.
— The DPP need to give reasons for failing to prosecute in Article 2 cases.
— Witnesses suspected of causing death must be compellable and the right against self-incrimination
needs to be addressed in order to ensure the integrity of the hearing.
— Verdicts must be possible at inquests.
— Legal aid must be available and witness statements must be made available in advance of the
hearing.
— Inquest hearings must be held promptly.
— The scope of the inquest must be such as to allow a broad inquiry into the circumstances
surrounding the death.
— If PIIs are to be used they should be narrowly drawn and should apply in inquest courts as they
do in ordinary criminal courts.
9 October 2003

128 United Nations Manual on the EVective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions,
UN Doc ST/CSDHA/12, UN Sales No 91.IV.1 (1991). The “UN Manual” provides model methods of investigation,
purposes, and procedures of an inquiry and processing of the evidence. (Chapter III, 16), requires that all investigations be
characterised by competence, thoroughness, promptness, and impartiality, (Chapter III, 16), the scope of the inquiry, the
terms of reference should be framed neutrally to avoid suggesting a predetermined outcome, (Chapter III, 18). In cases
involving an allegation of government involvement, the Minnesota Protocol recommends the establishment of a commission
of inquiry (Chapter III, 21/22), Such commissions require extensive publicity, public hearings, and the involvement of the
victims’ families, (Chapter III, 21).
129 Paragraph 87–92, Application No 24746/94, Judgment of 4 May 2001.
130 Paragraph 144, Application No 28883/95, Judgment of 4 May 2001.
131 Paragraph 121, Application No 30054/96, Judgment of 4 May 2001.
132 Application No 37715/97, Judgment of 4 May 2001.
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10. Memorandum from The Children’s Society

1. Introduction

The Children’s Society is a national charity working with children in order to address the problems and
injustices that they face. This includes work with children on the streets, children with disabilities, refugee
and asylum seeking children, and those in the youth justice system.
The Children’s Society has a significant amount of experience of working with children held in prisons,
through its Remand Rescue and National Remand Review Initiatives, which between 1997 and 2002 worked
with approximately 6,000 children remanded either to local authority secure units or Young OVender
Institutions. The work of these Initiatives has been captured in our recent publication “A Beacon of
Hope”133.
This submission is largely based upon this report and a research study conducted on our behalf by Barry
Goldson of the University of Liverpool entitled “Vulnerable Inside” (2002)134. This study looked at the
experiences of children remanded to Young OVender Institutions compared to those of children
accommodated in local authority secure units due to welfare concerns. Copies of these publications are
submitted with this statement.
The Children’s Society has drawn out the key points from these publications in relation to the relevant
articles of the European Convention on Human Rights and the issues of suicide and self-harm, poor
treatment and protection from harm.
The terms “child” and “children” has been used throughout this report to refer to “every human being
below the age of 18 years” in accordance with the UN Convention on the Rights of the Child and the
Children Act 1989.

2. Human Rights and Children’s Rights


The safeguards, protections and rights conferred upon children by domestic legislation and international
conventions, in particular, the Children Act 1989 and the United Nations Convention on the Rights of the
Child, should work together with the Human Rights Act 1998, to oVer a robust framework for the
protection of all children, including those held in prison. In practice, however, this framework oVers limited
protection to some children, particularly those in the youth justice system and in prisons. The primary piece
of child welfare legislation, the Children Act 1989, does not apply to the Prison Service itself despite the
recent High Court judgement which held that the Act applies to children held in prison.

3. The Profile of Children Held in Prison Custody


The background of children in prison is depressingly familiar: poverty, poor educational attainment,
family diYculties, drug and alcohol problems, mental health and other factors feature heavily in their
profiles. The work of The Children’s Society bears this out. Of the 4,358 cases the National Remand Review
Initiative worked on between 1999–2002, monitoring statistics show children with multiple patterns of
disadvantage:
— Half of the children had been involved with social services prior to their remand, with 10% of these
children subject to care orders and a further 20% accommodated by the local authority.
— Over 40% of children were not living with a parent prior to their remand—16% of these reported
no fixed abode, with a further 15% reporting unstable accommodation.
— Fewer than 20% of school-age children were attending school. Almost 30% of children were
excluded from school while a further 34% were long-term non-attendees.
— Of those children beyond school leaving age, two thirds were not working, in training or at college.
As summarised in Goldson (2002):
“Children whose lives have been damaged and disfigured by disadvantage, neglect and abuse are
the very children who occupy the juvenile remand wings of our prisons. These are the children for
whom the fabric of life invariably stretches across poverty; family discord; public care; drug and
alcohol abuse; mental distress; ill-health; emotional, physical and sexual abuse; self harm;
homelessness; isolation; loneliness; circumscribed educational and employment opportunities;
and the most pressing sense of distress and alienation”. (Goldson, 2002:51)

133 Moore, S and Peters, E. A Beacon of Hope: Children and young people on remand London: The Children’s Society 2003.
134 Goldson, B. Vulnerable Inside: Children in secure and penal settings London: The Children’s Society 2002.
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Ev 82 Joint Committee on Human Rights: Evidence

4. The Inappropriate Use of Custody


Examining the findings of the National Remand Review Initiative for a 12 month period, Goldson (2002)
found that a quarter of remanded children had been locked up for property oVences, and of those whose
final court outcome was known, around one-third had received a community sentence, and a further 5.6%
had their cases withdrawn, dismissed or found not guilty. This information is used by Goldson to suggest
that custody is being used inappropriately for a significant number of children.
Whilst the Crime and Disorder Act 1998 created powers for courts to remand children between the ages
of 12 to 16 directly to local authority secure units, 15 and 16 year old boys are required to fulfil the additional
criteria of being designated as “vulnerable” by the courts. This means that a court must find that “by reason
of his physical or emotional immaturity or a propensity of his to harm himself, it would be undesirable for
him to be remanded to a remand centre or a prison”. In addition, a vacancy in a local authority secure unit
has to have been identified to enable a boy of 15 or 16 to be thus assessed and remanded. In practice, this
has resulted in courts either opting not to carry out the assessment or boys being remanded into a YOI
despite being assessed as “vulnerable” on both counts due to the lack of available space.
The last decade has seen an explosion in the use of custody for children, increasingly for younger children
and for less serious oVences. Most recently Section 130 of the Criminal Justice and Police Act 2001 has
actually conferred upon courts greater powers to remand to custody where persistent oVending on bail is
an issue. Persistence has been defined by case law as meaning “on more than one occasion”. Prior to this
custodial remands were limited to those cases of children who were perceived to be a serious risk of harm
to themselves or others. This new power has increased the use of custodial remand for children and placed
significant demands on both on the Prison Service and local authority secure units.
I have just interviewed a boy on a £9.99 shop theft. They are persistent and a nuisance but no real
threat to the public at all. It is the persistence of their oVending which now makes the remand legal
but it is quite unnecessary. (NRRI practitioner in Goldson, 2002:126)
This measure is contrary to the articles of the UN Convention on the Rights of the Child that states that
custody should be used as a “measure of last resort” and for the “shortest possible time”.

5. Institutional Racism
Goldson (2002) suggests that racism not only means that black children are more likely (than their white
counterparts) to be remanded in custody, but they also face the prospect of less favourable treatment and
conditions. A quarter of children people worked with the National Remand Review Initiative were from a
black or minority ethnic background—for the children helped through by our London project the figure
rises to almost 50%.
The Director General of the Prison Service has recently acknowledged that the prison system is
“institutionally racist” (cited in Goldson, 2001:19).
I have long been concerned that the biggest single problem facing the Director General is the
culture that still pervades parts of the prison system . . . It is a culture that adopts an attitude to
prisoners that is not only judgmental, but too often includes physical and mental brutality . . . One
of its most obvious manifestations is in attitudes to minorities, of whatever, kind, who are treated
not as equal but as unequal because of their minority status. There are . . . minority groups whose
inequality of treatment concerns me—ethnic or cultural minorities. (Her Majesty’s Chief Inspector
of Prisons quoted in Goldson, 2002:56)
The Children’s Society, in partnership with the Community Fund and the University of Central England,
is currently embarked upon a four-year programme of research examining the experiences of black children
of the youth justice system, including their experience of prison custody. The first phase of the research,
looking at the prison system, is to be launched later this year.

6. Unhealthy Prisons
The physical and mental health needs of children in prisons are significant and as such require sustained
attention from an expertly staVed and well-resourced range of health services. HM Chief Inspector of
Prisons has noted that over 50% of young prisoners on remand and 30% of sentenced young oVenders have
a diagnosable mental disorder. The British Medical Association found that 17% of young oVenders were
not registered with a GP and that the population of Young OVenders Institutions represent a “concentration
of unhealthy lifestyles” (Goldson 2002).
The Prison Service is being consistently starved of adequate funding to meet this clinical and social
care agenda . . . the prison medical service has been in an acute crisis for some time . . . because of
the general shortage of resources in prisons, prison medical oYcers often have inadequate support
from an appropriately qualified healthcare team . . . unqualified “hospital oYcers” are given
responsibility for aspects of clinical care that in the NHS would only be given to clinical staV with
appropriate training. (British Medical Association quoted in Goldson, 2002:57)
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Joint Committee on Human Rights: Evidence Ev 83

Despite the best eVorts of health care staV in prisons, children who have compelling health-related needs
are exposed to environments in which their health is likely to deteriorate further.

7. Systemic Bullying

Goldson (2002) acknowledges the hold that bullying, in all its forms, has on the Prison Service:
There can be no doubt that physical assault is commonplace. However, children are also exposed
to other forms of bullying, including sexual assault; verbal abuse (name-calling, threats, racist
taunting); extortion and theft; and lending and trading cultures—particularly in relation to
tobacco—involving extraordinary rates of interest, which accumulate daily . . . Moreover,
bullying is contagious. It is entrenched within the fabric of prison life; it is integral to the very
incivility of child imprisonment and it is an intrinsic feature of the survival-of-the-fittest machismo
that prevails. The bullied child is invariably also a bully; the damaged wreak damage as the victim
becomes the aggressor within the corrosive environment that is prison . . . It is of little surprise that
within this culture of torment, children’s vulnerabilities are compounded and exposed. For all,
bullying perpetuates misery and fear. For some, it is literally too much to bear. (Goldson 2002:
58/59)

The children interviewed by Goldson also articulated a sense of hopelessness and a lack of faith in the
ability of prison oYcers to oVer them protection:
It’s going on all the time—threatening you, shouting things, calling your mum names. There’s
nothing you can do about it. You just have to cope with it. I don’t know how I do, you just do.
My mate was hammered in the showers. When the screws asked him what was wrong he said that
he fell over. If he had told him the truth, he’d have got hammered again. Most of the staV are all
right but some either ignore you or try to wind you up. They swear at us and that, and call us
names, and they threaten to drag us down to the block. Every day . . . bullying happens, there’s
fight every day. It’s getting worser and worser. A lad has just killed himself and I reckon that was
through bullying. A 16-year old lad . . . does not kill themself when they have their whole life in
front of them, I just picture it in my head and it’s bad, it’s really bad. (Boy aged 15 in Goldson,
2002:147)
I was really scared in my pad. They are shouting at you through the windows and that, saying, “I
want your breakfast in the morning” and stuV like that. I was lying on my bed proper scared,
thinking, “I don’t want to go out there in the morning, I don’t want to go out at all”. (Boy aged
15 in Goldson, 2002:142)

It is hoped that the provision of advocacy services for children in prisons, currently being developed by
the Youth Justice Board, will go some way to tackling the issue. To have any real eVect, however, this must
go hand in hand with reform of the Prison Service’s Complaints and Representations Procedures to bring
them into line with the Children Act 1989 regulations and procedures.

8. Information Breakdown

Indeed, the view that prison personnel should take greater individual care of children, and that the
prison authorities should raise general standards, has made a very significant policy impression
over the last two years. Much of this new emphasis has focused upon improving methods of
vulnerability/risk assessment to identify and screen out the most vulnerable children, but this is
itself a source of some concern. (Goldson, 2002:63)

The Youth Justice Board and Prison Service have worked together to develop new assessment procedures
for children in the youth justice system. The ASSET assessment, created for Youth OVending Teams, is
completed at each stage of the youth justice process. These forms should follow children into prisons, along
with a post-court report (PCR) completed at court following a remand or sentence of custody. In addition,
prison establishments have been given form TV1 to complete at the reception stage for every child.
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Goldson (2002) in his study noted that prison oYcers were very uncomfortable with the responsibility of
predicting the young person’s vulnerability due to a lack of substantiating information, limited time and
resources. Goldson also reported that both post-court reports (PCRs) and the ASSET assessment forms
were only received in 28% of cases and as many as one in five children arrived at prison with no information
at all:
If you receive it, it can be adequate, but most of the time you are working cold and it’s gut reaction
on the basis of an interview, which can be very short, and probably not very accurate. (Prison
OYcer in Goldson, 2002:135)
We very seldom get all the information and we only have to go on what the prisoner is telling us.
We try to pick up on body language, eye contact and the like, but at the end of the day we just
have to write down what they tell us. If they say “no” to the history of self-harm question, for
example, then I will simply write down “inmate says no”. (Prison OYcer in Goldson, 2002: 136)
What we need is a private room. Too much is going on at reception. Sometimes at reception you
just have to find a corner space, anywhere that is not being occupied. We used to be able to take
them into a store cupboard but that’s used for something else now. (Prison OYcer in Goldson,
2002: 137)
It’s usually busy and noisy and rushed at reception. It depends on the time that they arrive. There
are times when kids are seen in court at half-ten in the morning and we get them at 10 to 7 at night.
We then have to do reception, and everything that goes with it for up to 15 kids before half-eight.
(Governor in Goldson, 2002:138)

It is, however, not very surprising that children fail to open up to deeply personal questioning conducted
in the manner described above. This leaves staV and children in a highly vulnerable situation. If a young
person’s history is unknown to the prison oYcer on reception, then previous suicide and self-harm attempts
or mental health problems may go undetected. Therefore a young person may be seen as coping and
indicators of vulnerability go unnoticed when, in fact, the young person is at very real risk:
It follows, therefore, that institutionally expedient, hasty and necessarily cursory assessments, of
the type routinely applied to children in prisons, will inevitably carry serious risks. They are not
meaningful safeguards and any pretence otherwise is profoundly misguided. (Goldson, 2002:63)

9. The Need for Support and Protection

The need for greater levels of support and protection for children in prison, particularly on the first night,
in preventing self-harm and suicide is obvious. Goldson (2002) reports the anxieties of children and
prison oYcers:
It’s really scary—you don’t know what to do and where to go. You have a little interview with an
oYcer and a nurse and they ask if you know why you’ve been remanded, if you’re all right, if you
have any health problems and if you’re suicidal . . . I just said, “I’m all right” but I didn’t know if
I was all right or not. I was just thinking, “What will it be like?”, that’s all I could think about. I
wasn’t really listening to what they were telling me. I kind of wanted to get out of there but I didn’t
want to go to my cell. It was weird. They just said that if you ever get bullied or feel down, talk to
an oYcer. I was thinking “Will they do owt. What if I do get bullied? If I told them, would it stop?”
You hear all these rumours about what happens to grasses and I thought, “There’s no way I’m
going to be a grass” but I was really scared. (Boy aged 16)
I just felt really alone and down. They just spoke to me like I was a piece of meat. They didn’t make
you feel like a person. I know I broke the law and that, but they just treated me like a piece of shit.
They think ‘cos you’re in prison, and they’re in uniform, they can just tell you to do what they want
and treat you as bad as they want. (Boy aged 16 in Goldson, 2002: 139)
There is no real first night support. We might say that there is but it’s all about back-covering
really . . . If it says check every 15 minutes and I do, I’ve done my bit, so it’s not my fault if it (self-
harm or suicide) does happen. That’s hardly support though, is it? (Prison OYcer)
We have been very lucky here. We have only had one suicide and not that many attempted suicides.
Bearing in mind the way that they are treated on the first night, this is more by luck than design.
(Prison OYcer in Goldson, 2002:141)

Goldson (2002) cites the Personnel OYcer scheme as an example of an attempt to address the
“incongruous duality of controlling and caring roles” within the role of the prison oYcers. But even in “the
best” of YOIs 49% of children stated that their Personal OYcers never met with them, compared with 89%
of those in “the worst” YOIs.
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Joint Committee on Human Rights: Evidence Ev 85

The Safeguarding Children report (2002)135 produced by the Joint Chief Inspectors concluded that:
8.19 Young people in YOIs still face the gravest risks to their welfare, and this includes those
children who experience the greatest harm from bullying, intimidation and self-harming
behaviour.
8.20 The work of YOTs (Youth OVending Teams) was detached from other services, and there
was only limited evidence that they were addressing safeguarding issues. The focus of their work
with young oVenders was almost exclusively on their oVending behaviour, and did not adequately
address assessing their needs for protection and safeguarding. (Department of Health 2002:72)
Youth OVending Teams, in most instances, are the agency best placed to facilitate the sharing of
information about the child in custody. But figures from the National Remand Review Initiative show that
in 13.4% of cases Youth OVending Teams were unaware that the child was in custody prior to NRRI making
contact to discuss the remand (The Children’s Society 2003).
Given that many these children are held at significant distances from home, despite the commitment of
the Youth Justice Board to place children close to home, the sense of isolation and the lack of information
available to the prison serve to heighten their vulnerability. The possibility of regular visits from family
members and their Youth OVending Team worker is also reduced.

10. Conclusions
The primary role of the Prison OYcer is to maintain discipline, order and institutional security. Set
against this is the duty of care, which arguably becomes more sharply focused when the prisoner is
also a child. (Goldson, 2002:65)
Whilst the Prison Service has a duty of care to its prisoners, it is currently not required by the Children
Act 1989 to promote the welfare and protect the children it accommodates. As a result, the welfare and
protection of these children are secondary considerations. In order to address properly the concerns listed
above, and to protect children’s welfare and human rights, we believe that the Children Act 1989 should
apply to the Prison Service itself as well as to the individual child.
The singular purpose of the youth justice system in England and Wales is “to prevent oVending” as laid
down by the Crime and Disorder Act 1998. If children within this system are to be properly cared for and
protected and the risk of suicide and self-harm reduced, then this must change. The Children’s Society, as
part of a wider coalition of children’s charities and penal reform groups, has been lobbying for the Criminal
Justice Bill to be amended to include a clause which puts the welfare of children at the heart of the system
and places a duty upon all agencies and institutions that deal with them to protect them and promote their
welfare. We are deeply concerned that Government has missed an opportunity to properly address this issue
in the recently published Green Paper on children at risk (DFES 2003)136 and its companion paper on youth
justice (Home OYce 2003)137.
Finally, it is recommended that the principles and rights bestowed upon children by the United Nations
Convention on the Rights of the Child are fully integrated into the youth justice system in England and
Wales, in order to ensure that the special protections conferred upon them due to their status as children
are fully applied.
The Children’s Society would be happy to supply any additional information that is required to support
the work of the Committee.
16 September 2003

11. Memorandum from Doughty Street Chambers


1. We are writing to convey our written evidence on behalf of the above chambers, to you as Chair of the
Joint Committee on Human Rights. As part of your inquiry into human rights and deaths in custody, you
have asked for evidence upon Article 2 of the ECHR and the “investigation of deaths in custody”, which is
the question we will address. Members of our chambers have been at the cutting edge of this issue for many
years, in the conduct of inquests into “custody deaths”, and in challenging their inadequacies by way of
judicial review.
2. You will be aware that the Judicial Committee of the House of Lords is due to rule upon much of this
territory in the case of “Amin v Home Secretary”. It is anticipated that judgement could well be given in
October or November. There will also be further relevant rulings by the same Committee in the appeal of
“Middleton” and the joined case of “Sacker”, both of which more directly concern inquest procedure. The
hearing of those appeals will take place in February 2004.

135 Chief Inspector of Social Services et al (2002) Safeguarding Children: A joint Chief Inspectors’ Report on Arrangements to
Safeguard Children London: Department of Health.
136 Every Child Matters (2003) London: DFES.
137 Youth Justice: The Next Steps (2003) London: Home OYce.
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3. We append the text of the critical paragraphs from the two leading ECtHR authorities, which
definitively interpret the investigative requirements of Article 2.138 Those passages are paragraphs 102–109
from Jordan v UK, 4 May 2001, which are repeated verbatim at paragraphs 69–73 in Edwards v UK, 14
March 2002. More appears from other parts of those judgements, but these are the “general principles”
establishing the minimum common safeguards, to be consistently applied in all Convention jurisdictions. It
should however be remembered that Convention law provides a “floor, but not a ceiling”. There is no
impediment to national jurisdictions keeping or even developing more eVective safeguards. For example,
there is good evidence that through inquest juries, we have had forms of public hearings and investigations
into custody deaths for many centuries: see the Statute de OYcio Coronatoris, 1276, cited in R v Southwark
Coroner ex p. Hicks [1987] 1 WLR 1624 at 1636: and Hale’s History of the Pleas of the Crown, 1736, reprint
of 1971, vol II, Chapter VIII, at p 57. The strength of common law protections is not diminished by the
passing of the Human Rights Act 1998.
4. In summary, the requirements for a compatible investigation are:
at the instigation of the state itself: not waiting for complaints or allegations, see paragraph 105;
independent, meaning lack of hierarchical connection with those connected with the events: eg in
a police custody death; at least a separate police force would be required: see paragraph 106;
eVective: eg gathering eye witness and scientific evidence to maximise the chance of getting at the
truth and if necessary founding a prosectution: see paragraph 107;
promptness and reasonable expedition: see paragraph 108. A recent example of unacceptable
delays appears in Finucane v UK, 1 July 2003;
with suYcient public scrutiny to ensure eVective accountability: see paragraph 109. Though this
seems to allow for public scrutiny of the “results” of the investigation, rather than the process, this
has been significantly fortified by paragraph 83 in Edwards v UK. A prison death required “the
widest exposure possible” so that a private inquiry, though rigorously conducted, was insuYcient
for Article 2. The same would apply to police custody deaths;
and participation of the next of kin, suYcient to safeguard their private interests: see paragraph
109. The Court emphasised at paragraphs 133–4, that disclosure of documentation to the family
at any inquest was essential to eVective participation.
5. The most controversial requirements are the last two above: public scrutiny; and participation of the
next of kin. Indeed the Home Secretary is attempting to argue in the Amin appeal, that these are not
consistent requirements at all; and even if they are, they are not separate requirements. These arguments are
deployed despite the centuries of common law history above. The House of Lords Judicial Committee will
have to decide these points.
6. The ECtHR made clear in Jordan v UK that, though they were establishing certain minimum
safeguards, there was no one uniform method of providing those safeguards. The investigative mechanisms
and procedures will vary considerably across the many diVerent Convention jurisdictions: see paragraphs
105 and 143. Indeed it is not necessary for any one procedure to comply with all the requirements.
7. It follows that all the examples of investigative steps given in your question are of relevance to
compliance with Article 2. No one mechanism needs to provide all the requirements. However, in the round,
they must ultimately satisfy them all. To take one kind of investigation, an internal Prison Service
investigation into a prison death could not be “independent” or provide suYcient participation by the
family, or public scrutiny. However, provided there is also a prompt, independent and eVective police
investigation, and a public inquest, it may well contribute somewhat to the gathering of evidence to get at
the truth and possibly contribute to founding a prosecution or discipline proceedings, to prevent recurrence.
If the Report is served upon the next of kin it may contribute somewhat to providing them with necessary
information. Though quite insuYcient in itself, an internal prison service investigation is therefore of some
relevance to overall compliance.
8. The requirements of the “Jordan” criteria are no innovation, for the normal manner of investigating
relevant deaths within this jurisdiction. The combination of an independent police investigation and a
Coroner’s inquest will generally in practice take place after any death triggering the Article 2
investigative duty.
9. The scheme of section 8 of the Coroners Act 1988 provides that there is a statutory duty to hold an
inquest where there is “reasonable cause to suspect”:
any death at all in prison: section 8(1)(c); and
any “violent or unnatural death; or sudden death of which the cause is unknown”, see section
8(1)(a) and (b).
10. Although there is no express reference to deaths in police custody, or at the hands of the police in
section 8(1), as a matter of practice, and under Home OYce Circulars, Coroners always hold inquests with
juries in all custody deaths; see R v Inner London North Coroner, ex parte Linnane [1989] 3 WLR 395.

138 Not printed here.


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11. An independent police inquiry and an inquest are capable of providing an “eVective investigation”
within Article 2, and compliance with the “Jordan” requirements. In particular, the inquest combines in one
process “public scrutiny” with involvement of next of kin. Providing for both of these requirements is no
special burden or innovation. It is the norm under our system, and has been for many centuries.
12. It was held in McCann v UK, at paragraphs 162–3, that that particular inquest, despite certain
shortcomings, was Article 2 compliant. In Jordan v UK, at paragraphs 132–34, the Court expressed
reservations about whether in the absence of legal representation and advance disclosure of documents,
inquests could so comply. [We here put aside those profound problems, peculiar to the Northern Ireland
inquest system, of endemic delays of many years, the unavailability of any “unlawful killing” verdict, and
the lack of compellability as witnesses of those who perpetrated the killing.]
13. Until recently the absence of legal representation and advance disclosure of documents, were general
problems with our inquest system, arguably preventing compliance. However, under Home OYce Circular
20/1999, set out at paragraphs 73–74 in the Jordan v UK judgement, there is now provision for advance
disclosure. Further, under a scheme similar to that mentioned at paragraph 67 in the same judgement, a
limited scheme for funding of legal representation now operates.
14. We have the following reservations about the current ability of our inquest system to comply with
the Jordan requirements, and therefore with Article 2:

Lack of resources
We attach a copy of the striking aYdavit of the West London Coroner in the “Amin” case, explaining,
at paragraphs 6–10, why she simply could not practically hold the kind of inquest required by that case.

Disclosure
There is continuing delay and obstruction in complying with the Home OYce Circular.

Representation
While there is generally moderate legal aid in the major high profile cases, there is inconsistency, and no
clear principle applying to all death in custody cases.

Verdicts
There is now a possible limited verdict of “system neglect” as a result of the Court of Appeal decision in
Middleton v West Somerset Coroner [2002] 3 WLR 505. However, in practice Coroners are applying two
restrictions, (a) only where the neglect is “gross” and (b) proof must be beyond reasonable doubt. These
restrictions are unfounded and prevent findings of many levels of state neglect. The inquest cannot then
publicly attribute many instances of state fault.
15. A fundamental Home OYce Review into the whole Coronial system has reported in June 2003: CM
5831. It makes 123 recommendations, covering organisation, resources, procedure verdicts and family
rights. Some of these proposals have been reinforced by the Report of Dame Janet Smith into the Harold
Shipman deaths. It is widely anticipated that there will be changes to substantive and procedural inquest law,
as well as to the organisation and resourcing of the system. We commend these as vital to ensuring consistent
compliance with Article 2 within our jurisdiction.
16. Until these problems are addressed, Article 2 compliant inquests will not consistently take place; and
in some of the most complex cases, inquests may not be possible at all. In the interim therefore, other
methods of investigation will be necessary. It is to be noted that the Hutton inquiry is specifically taking the
place of the inquest under section 17A to the Coroners Act 1988. Whatever form of alternative inquiry is
adopted, its process must be public and there must be provision for participation by the next of kin, with
legal representation and advance disclosure of documents.
20 September 2003

12. Memorandum from The Howard League for Penal Reform


The Howard League for Penal Reform was extremely interested to see that you were undertaking an
investigation into this very important area of policy. The Howard League has been campaigning to raise
awareness about this issue for more than a decade and there is still a long way to go.
Unfortunately, due to limited staV resources we are not able to make a formal submission, on this
occasion. However, I am sending you a copy of the submission we made to the recent Home OYce
consultation on investigating deaths in prisons and approved premises, and a copy of a letter sent to the
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Ev 88 Joint Committee on Human Rights: Evidence

Prison and Probation Ombudsman this week in relation to the on-going investigation into deaths at HMP
Styal, for information.139 Please feel free to circulate this information to other Committee members if you
feel it is helpful.
12 September 2003

13. Memorandum from Inquest

1. Introduction
INQUEST is the only non-governmental organisation in England and Wales that works directly with the
families and friends of those who die in custody to provide an independent free legal and advice service to
bereaved people on inquest procedures and their rights in the Coroner’s Court. We provide specialist advice
to lawyers, the bereaved, advice agencies, policy makers, the media and the general public on contentious
deaths and their investigation. We also monitor deaths in custody where such information is publicly
available and identify trends and patterns arising.
INQUEST is unique in working directly with the families of those who die in all forms of state custody—
in which we include deaths in prison, young oVender institutions, immigration detention centres, police
custody or while being detained by police or following pursuit, and those detained under the Mental Health
Act as they involve people whose liberty has been taken away.
We have accrued a unique and expert body of knowledge on issues relating to deaths in custody and seek
to utilise this towards the goal of proper post-death investigation and the prevention of custodial deaths.
INQUEST has been at the forefront of working alongside bereaved people to bring the circumstances of
the deaths into the public domain and under public scrutiny and to hold the relevant authorities to account.
We have reported our concerns about custodial deaths and their investigation at a national and international
level.140 We were also consultants to the Liberty project on deaths in police custody and many of our
recommendations were endorsed in their final report.
There have been a significant number of high profile deaths in custody that have raised public and
parliamentary disquiet. This legacy needs to be fully understood if we are to move forward and ensure that
the custodians are truly accountable to the community they serve.
INQUEST has supported families’ calls for a full public inquiry into the issues raised by deaths in custody
for many years but these have received a negative response from government. INQUEST has been frustrated
by the failure to learn the lessons from deaths occurring in diVerent custodial settings and the lack of joined
up learning between agencies. In our view this has resulted in more deaths occurring because of the failure
to approach this serious human rights issue in a holistic way. Many of issues arising from deaths in custody
need to be fed into the wider agenda for social inclusion of government, local authorities and voluntary
sector. Many of the deaths which occur are part of a pattern which impact on policies on combating racism,
drug and alcohol use, homelessness, mental health, crime prevention and policing.
To this end we recommend the setting up of a Standing Commission on Custodial Deaths which would
bring together the experiences from the separate investigation bodies set up to deal with the police, prisons,
hospital deaths and the others. Such an over-arching body could identify key issues and problems arising out
of the investigation and inquest process following deaths and it would monitor the outcomes and progress of
any recommendations. It could also look at serious incidents of self-harm or near deaths in custody where
there is a need to review and identify any lessons. Arising from this it would develop policy and research,
disseminate findings where appropriate and encourage collaborative working. Lessons learnt in one
institution could be promoted in the other institutions, best practice could be promoted and new policies
designed to prevent deaths could be drafted and implemented across all the institutions. It would play a key
role in the promotion of a culture of human rights in regard to the protection of people in custody.
It should also have powers to hold a wider inquiry where it sees a consistent pattern of deaths. Such an
inquiry could give voice to and a platform for examination of those broader thematic issues and those issues
of democratic accountability, democratic control and redress over systemic management failings that fall
outside the scope of the inquest. One of its functions would also be to lay the past to rest and assisting the
process of eVecting real and meaningful change.
This submission details current concerns arising from our casework and monitoring of the investigation
and inquest process following deaths in custody. In the last ten years 1824 men, women and children have
died in police and prison custody.141 Many of these deaths raise concerns about inhuman and degrading

139 Not printed here.


140 The Ashworth Inquiry 1992; United Nations Committee on the Elimination of Racial Discrimination 1996 and 2000; Council
of Europe Committee on the Prevention of Torture 1997; Home AVairs Select Committee on Police Complaints and
Discipline 1997; United Nations Committee Against Torture 1998; Inquiry into the death of Steven Lawrence 1998; Health
Select Committee into Adverse Clinical Incidents and Outcomes in Medical Care 1999; Health Select Committee Inquiry into
the Provision of Mental Health Services 2000; Attorney General’s review of the role of the Crown Prosecution Service in
deaths in custody 2002; Fundamental Review of Coroners’ Services 2002; Joint Committee on Human Rights—deaths in
prison 2002; Independent Inquiry into the death in psychiatric care of David Bennett 2003.
141 For statistical analysis see appendix 1.
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Joint Committee on Human Rights: Evidence Ev 89

treatment, systemic failings and the unlawful use and abuse of force. Since 1990 there have been nine
unlawful killing verdicts returned at inquests into these deaths and no successful prosecution of any police
or prison oYcer.142
We draw the committee’s attention to:
— The increasing number of deaths in police and prison custody—a disturbing number raising
concerns about inhuman and degrading treatment;
— deaths due to alleged drunkenness or drug intoxication;
— deaths involving poor medical care;
— fatal shootings;
— police pursuits—an increasing percentage of police related deaths are following pursuits or
otherwise involving police vehicles;
— the lack of accountability and transparency in the investigation process;
— the disproportionate number of deaths of black people following the use of force;
— the poor treatment of the mentally ill in custody and inadequate medical care;
— the lack of central collection and collation of information on deaths of detained patients and
monitoring of the issues arising from inquests;
— the poor treatment of bereaved families following a death in custody/psychiatric care;
— the inadequacy of the current investigation and inquest process;
— the inequality of arms of the family compared to the state ;
— the failure of the state to learn from previous deaths and to ensure inter-agency communication
and learning; and
— the lack of accountability of state agencies.
And
— An independent public inquiry should be set up to look at all the issues relating to deaths in custody
in an open, systematic and inclusive way. We have been frustrated at the government’s piecemeal
approach to the complex issues of deaths in custody and their investigation and the lack of “joined
up government” on this issue.
And
— The need to establish a Standing Commission on Custodial Deaths.

2. Deaths in Prison

2.a Issues arising from prison deaths:


— institutionalised attitudes towards prisoners that cause an indiVerence to pain and distress and
help to prevent learning;
— young people in deep distress described as manipulative trouble makers;
— a disturbing number of self-inflicted deaths in prison of people who had a known previous
psychiatric history;
— the rise in the number of youth deaths and in particular of remand prisoners, the need for an
understanding of the needs of young people;
— a significant rise in the number of deaths of women in custody;
— the link between prison deaths and inadequate or inappropriate health care;
— the increasing number of drug related self-inflicted deaths in prison of prisoners who are not given
treatment and support for drug withdrawal;
— the stereotyping of black people with mental health problems;
— the use of prison as a “place of safety” for those with serious mental health problems;
— the number of self-inflicted deaths which occur within Health Care Centres;
— the need for a reduction in the use of imprisonment rather than treatment of vulnerable people,
for whom prison is the worst place to be. Prisoners with mental health problems are often a risk
more to themselves than to others as the increasing catalogue of self-inflicted deaths in prison
reveals;
— inadequate policies to deal with bullying;

142 See appendix 2.


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— there has been a pattern of failure to acknowledge self harming behaviour as an expression of
distress which has often led to such behaviour being treated as a discipline problem and for clearly
distressed people to be placed in segregation rather than receiving appropriate care;
— continuing problems with cell design, access to ligature points; and
— the need for diversion schemes for those suVering from mental health problems, drugs and alcohol
problems.

2.b Women’s deaths


There is a crisis in women’s prisons highlighted by the increasing number of deaths and incidents of self-
harm and the numbers of women prisoners with mental health and or drug and alcohol problems being sent
to prison. This year 14 women have died in prison custody, the highest number ever recorded. 12 out of the
14 have died as a result of hanging themselves, two having taken an overdose of medication.
In response to public concern about the situation at Styal prison where six women died during an eight
month period the Prison Minister announced an investigation by the Prison Ombudsman into the death of
Julie Walsh. We were concerned at the narrow remit of the review and that it was not reinvestigating the
other deaths. There was also concern that families of the other women who died were being asked for their
views without having had disclosure of the investigation reports into their relative’s death. INQUEST feels
that this investigation was a missed opportunity to set up a wide-ranging independent public inquiry that
examined all of the recent deaths, any institutional and systemic failings and most importantly involved
bereaved families and women prisoners themselves.
INQUEST put in a submission to the investigation about our concerns the treatment of bereaved families
following deaths in prison. Our contact with some of the families aVected reveal concerns about
communication with the Ombudsman’s oYce about the timing and publication of the report. Our concern
is also with his use of Prison Service investigators to conduct his investigation.

2.c Deaths of children and young people


INQUEST has prioritised work on the deaths of young people and children in custody since 1990, when
we advised and supported the family of Philip Knight, a 15 year old boy who took his own life in Swansea
prison. We have been frustrated by the large number of cases that have raised similar issues and the apparent
failure of the Prison Service to learn the lessons.
We believe that for many young people prison is inappropriate and that their experience of imprisonment
has directly contributed to their death.
Between January 1990 and December 2003 there have been 177 self-inflicted deaths of young people in
prison (21 and under). There have been a total of 947 self-inflicted deaths in prison. These figures are situated
in the context of 21,760 reported incidents of self-harm in prison between 1998 and April 2002. Although
these are not broken down in detail it is recognised widely that self-harm amongst young prisoners,
particularly women, is an urgent problem.
We would like to draw the committee’s attention to the case of Joseph Scholes which is illustrative of the
concerns these deaths raise about the way in which the criminal justice deals with children. It also reveals
the inadequacy of the current inquest system to deal with the complexity of issues by these cases that engage
Article 2 of the Human Rights Act.

Joseph was a deeply disturbed boy who had disclosed a history of alleged sexual abuse from an
early age. On 24 March 2002 he hanged himself in his cell at Stoke Heath Young OVender Institution
in Shropshire. His death occurred just nine days into his two-year sentence for street robbery.
Joseph’s death and other tragedies like it, raise serious issues about the ability of the present system
to cope with society’s most vulnerable young people and to provide them with a safe as well as a
secure environment. The question arises as to how best to identify any systemic failings that do exist
and how future tragedies can be avoided.

The case for a public inquiry rather than an inquest


INQUEST, Nacro and Yvonne Scholes, Joseph’s mother recently launched143 a call for a public inquiry
into his death.
The narrative of Joseph’s life is grim reading and reveals a catalogue of failures by state agencies to
provide appropriate care and help to an exceedingly vulnerable child.144

143 Prison suicide of Joseph, 16, a phone thief who fell victim to sentencing policy—Independent 12/11/03.
144 A child’s death in custody—Call for a public inquiry—INQUEST and NACRO Campaign Briefing—November 2003.
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Joint Committee on Human Rights: Evidence Ev 91

Joseph’s death raises a number of wider questions about the treatment and care of children in the criminal
justice system and the accountability of those agencies responsible, in particular the Youth Justice Board,
the Prison Service and Social Services Departments. It asks questions of society and how it should respond
when children show clear signs of being disturbed and in need of professional intervention. It raises
questions about how agencies and individuals could have intervened in Joseph’s case and how we can ensure
that we have better systems and better practice in the future.
These are issues of policy, which no inquest—however well conducted—can cover in the way a public
inquiry could. A public inquiry into a case like Joseph’s would be able to examine the fundamental flaws in
our system for dealing with children who break the law—flaws which have led to 25 children aged 15 to 17
taking their own lives in custody since 1990.
The current inquest system is incapable of dealing with the systemic issues highlighted in cases such as
Joseph’s and consequently fails victims, their families and the wider public interest in seeking to ensure that
lessons are learnt to avoid future fatalities. Given the pattern of deaths of children in prison, the number of
diVerent state agencies involved in Joseph’s care, the systemic and wide-ranging issues involved, and the
narrow confines of the coronial system, any inquest into Joseph’s death will not be able to fulfil the state’s
obligations under Article 2 incorporated by the Human Rights Act 1998 to identify faults in the system that
might have led or contributed to the death and to enable steps to be taken to prevent the recurrence of such
deaths in the future.
Six months before Joseph died 16 year old Kevin Jacobs hung himself from the bars of his cell. He too
had been identified by prison staV, social workers and doctors exceptionally vulnerable disturbed and “at
risk” young boy. The inquest jury returned a verdict of “system neglect” fining “gross deficiencies within
the system and a failure to provide consistent and safe accommodation.”145

Deaths Involving the use of Force

3.a The General Issues


INQUEST has worked with many of the families of those who have died on the most significant and
controversial deaths in all forms of custody over the past two decades in particular those involving the use
of force.146 The majority of these involve the police.
INQUEST’s work in this area reveals serious shortcomings in the existing mechanisms of legal and
democratic accountability, and the consequent impact in particular on community relations has been
profound, resulting in a lack of public confidence in the current system. Until recently complacency and
inaction have characterised the response from government agencies during the last two decades to these
deaths. This indicates a failure and/or unwillingness to ensure that systems are in place to learn the lessons
to prevent further deaths and ensure accountability of agencies of the state.
For two decades we have documented our concerns about deaths where the use of restraint by state agents
has either caused or played a significant contributory factor in the death of the deceased. Casework147 in
police prison and psychiatric custody has revealed concerns about the excessive use of force generally
including the use of CS spray, US style batons, firearms, strip cells and medication as well as the use of
dangerous “control and restraint” methods such as body belts, “neck holds, and other restraint techniques
resulting in the inhibition of the respiratory system, asphyxia and death.”148
The recent inquest149 into the death of Roger Sylvester highlighted the issue of the police using dangerous
methods of restraint despite a pattern of previous deaths.
A recurrent theme in these deaths is a quick resort to the use of force in general and restraint in particular
among our detaining authorities—even where there are available and practical alternatives, which are not
considered. In theory restraint is supposed to be deployed as a means of last resort but is not translated into
practice. Regulations governing the use of restraint as a means of last resort appear to remain enshrined
only on paper.
While the number of deaths involving the use of force are a small minority of all deaths in custody they
have been the most controversial because of what they have revealed about the excessive use of force by
functionaries of the state.
There is no central collation of statistical or other information on restraint related deaths—we are
dependent on the individual agencies for that information where it is made available, and our own
monitoring.

145 INQUEST press release 26 September 2002.


146 Forthcoming publication—Deaths in Custody following the use of force—INQUEST 2004.
147 This means working closely with family members, very soon after the death, referring them to appropriate lawyers, working

with the legal team, attending the inquest, raising the issues with relevant agencies and government departments and with
MPs and other interested organisations. This gives us a unique body of knowledge from which to comment on the deaths
and the issues they raise.
148 See INQUEST reports on the deaths of Denis Stevens, Alton Manning, Kenneth Severin, Harry Stanley, Brian Douglas,

Wayne Douglas, Shiji Lapite, Glenn Howard, Roger Sylvester and Giles Freeman.
149 September 2003.
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In 2002 and 2003 our casework on police custody related deaths has seen a disturbing increase in the
number of restraint related deaths particularly on those with mental health problems.150

3.b Particular problems with the criminal justice and inquest system in these deaths
It is extremely rare for there to be a prosecution after a death in custody even where there has been an
inquest verdict of unlawful killing.151
Despite a pattern of cases where inquest juries have rejected the oYcial version of events and found
overwhelming evidence of unlawful use of force and neglect, no police or prison oYcer or nurse has been
held responsible either at an individual level or at a senior management level for the institutional and
systemic failures to improve training and other policies.
Our monitoring of the cases has revealed an institutionalised unwillingness and reluctance to approach
these deaths as potential homicides. This infects the whole process from the investigation carried out by the
police through to the considerations by the Crown Prosecution Service. This serves only to encourage a
culture of impunity and sends out a clear message to police and prison oYcers and other detaining agents
that these deaths can occur as a result of their acts or omissions and they will not be called to account. The
perception is created that state agents are above the law. This is one of the most contentious issues in relation
to the approach of the criminal justice system in relation to all deaths in custody.
Our casework suggests that when the use of certain kinds of violence is embedded in the working culture
of any organisation (whether a hospital or the police) it isn’t easily eradicated by directives from above.
Where there exist no real sanctions for those who abuse restraint and force, it is easy to see how those
individuals working in detaining authorities are allowed to feel that they can act with impunity. The bottom
line therefore relates essentially to the means by which the use of restraint is regulated and the extent to which
such regulation and its implementation is open to public scrutiny as a basic safeguard against the abuse
of force.
There are limited opportunities for the public scrutiny of the abuse of restraint and force in our custodial
institutions. Within the agencies involved there exist internal investigative and disciplinary processes, which
by their very definition are not open to public scrutiny. Guidelines/manuals on the use of restraint have been
shrouded in secrecy and not made available. In the absence of criminal proceedings against those responsible
for such abuse, we are left with the inquest with all its limitations as the only forum at which the ensuing
deaths can be subjected to any semblance of public scrutiny.
We address some of the problems of the inquest system below and these are all the more apparent in
dealing with these particularly disturbing deaths.

3.c Racism and stereotyping


Since 1990 INQUEST’s monitoring has revealed how a disproportionate number of black people and
those from minority ethnic groups have died as a result of restraint or serious medical neglect. It is the
emergence of statistical information backed by factual accounts about the circumstances of the death that
has been crucial to understanding the influence of institutional racism on the treatment of black people in
custody. Another group over represented are the mentally ill where “negative imagery” once again informs
their treatment—the stereotype of the mentally ill as “mad”, “bad” and “dangerous”.
These issues have been raised consistently by INQUEST with the United Nations Committee on the
Elimination of Racial Discrimination who have commented on their dissatisfaction with the current
methods for investigating the deaths. It was also touched upon in the Lawrence Inquiry report. This pattern
of deaths in custody feeds the perception and reality of racism within the police and prison service and within
the NHS.
Cases have revealed a use of violence on some occasions that is greatly disproportionate to the risks posed
involving black and Irish people and the mentally ill, raising questions about the attitudes and assumptions
of some state oYcials and pre-conceived ideas about the propensity to violence of particular groups of
people.
There has been considerable public anger particularly amongst the black and Irish communities about
what some of these cases have revealed about the unlawful and excessive use of force used against black and
minority groups. Frequently at inquests there is an attempt to demonise the person who has died and
reference made to their “superhuman” strength, and their “animalistic” behaviour.
The disproportionate number of black deaths in custody following the use of force was an issue that the
government was slow to acknowledge despite the fact that INQUEST were documenting this issue at a
national and international level.

150 See cases of Giles Freeman, Mikey Powell, Andrew Jordan.


151 INQUEST/Liberty/Bhatt Murphy submission to Attorney General review of CPS decision making following deaths in
custody—2002.
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Joint Committee on Human Rights: Evidence Ev 93

The Home OYce Bulletin “Deaths during or following police contact 2002–03 published on 20 November
2003 highlighted the rise in the number of deaths of people from minority ethnic communities. In response
to this the Government has announced that it has commissioned research from the PCA in an attempt to
discover any common factors underlying these deaths. It is a matter of concern that their response to this
situation is to seek research from a discredited organisation in who the public have little or no confidence
in given their history of involvement in a number of high profile black deaths in custody. INQUEST has
not been contacted as part of this research.

3.d The failures to learn the lessons


These deaths show a systemic failure to learn lessons: to review, revise and implement policies, instigate
new training, to share and disseminate information and guidance across diVerent state agencies.
Evidence of dangerous practice and culture has emerged but the lessons to be learned have not been
applied to the range of organisations that are increasingly involved in restraining people:
— police and prison oYcers and those working in psychiatric custody;
— immigration oYcers;
— private security firms detaining asylum seekers;
— security guards; and
— and those working in care homes for children, people with learning disabilities and older people.
In the majority of restraint-related deaths coroners have reiterated their concerns about restraint training
and made recommendations but there is no mechanism for monitoring such recommendations and their
communication and subsequent implementation across relevant Government departments.
In our view this failure to act and ensure inter-agency communication and collaboration in terms of policy
and practice around restraint has resulted in more deaths and serious injury.

3.e Deaths of detained patients


The deaths of detained patients remain shrouded in secrecy and are not in the public domain to the extent
as those that occur in police and prison custody.
Of particular concern is the failure of government or any of its arms length bodies to collate and publish
annual statistical information about deaths of detained patients. The existing internal systems for examining
and reporting these deaths are so poor that we believe some contentious deaths could escape any public
scrutiny.152 And in relation to the inquest system there is no requirement for the coroner to sit with a jury—
a matter that must be addressed in any forthcoming reform of the inquest system.
INQUEST has been unable to take up the issue of the deaths of detained patients in the same way that
is has worked consistently on the deaths of people in other forms of custody. We believe that it has been due
to the relentless pressure we have applied in those cases that some change has happened in these settings.
This is impossible when even access to information about who has died and in what circumstances is not
available.

3.f What does INQUEST’s work reveal about deaths involving use of force?
— The need for independent investigations into deaths following the use of force. All deaths should
be treated as potential homicides until proven otherwise.
— Police related deaths are not being treated with the seriousness they deserve in terms of the
investigation process—the Police Complaints Authority are continuing to sanction the same police
force investigating itself even in cases where there are clear questions about the possible abuse of
force. Very few members pass on our details to families. Families frequently complain about their
conduct and that they appear to be a mouthpiece for the police. Families have also complained
that Family Liaison OYcers have been actively discouraged families from contacting INQUEST
or from seeking legal advice and representation.
— Questions about inappropriate restraint, racist treatment, and lack of training and awareness and
the failure to review and revise practices in light of deaths.
— Poor implementation, understanding and co-ordination of restraint training, and a lack of joined
up thinking across government departments, made worse by the constant introduction of new
theories that dilute the importance of training of the dangers of methods of restraint.
— There should be national training standards across diVerent agencies and the establishment of an
inter-agency group to share best practice and working with the Health and Safety Executive, to
set up and monitor standards for the validation of training modules and courses;

152 INQUEST written evidence to the Inquiry into the death of David Bennett 2003.
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— The persisting ignorance about restraint related health risks—failure to keep watch on the physical
well being of a restrained person has played a major part in many deaths.
— The lack of centrally collected and publicly reported information on the deaths of detained
patients—following pressure on the police and prison service by INQUEST details are now
provided on all deaths in police and prison custody including racial/ethnic group. This should
happen as a matter of course.
— Cases have revealed a use of violence disproportionate to the risks posed to oYcer/nurse, especially
involving black people and the mentally ill raising questions about the attitudes and assumptions
held by some state oYcials and systemic and persistent deficiencies in police and prison oYcer
practices. Training must include an understanding of why violence occurs and how to deflect it and
use of alternative, non-aggressive techniques rather than the ready resort to the use of force.
— The majority of inquests have seen coroners recommendations but there is no mechanism to
monitor recommendations made by inquests and inquiries and their communication and
subsequent implementation across relevant government departments.
— Custodians have a diYcult and sometimes dangerous job to do, to do their job however they must
have the confidence of those they serve, to earn and maintain that confidence there must be a
system of accountability that is open and transparent.
— There needs to be an urgent inquiry into the use of restraint across diVerent state agencies.

4. The Inquest System


INQUEST has always argued that the right to an inquest is fundamental but that the current inquest
system is failing particularly in relation to deaths that involve questions of state and corporate
accountability.
There are severe shortcomings in the current systems for investigating and providing remedies after deaths
in custody. These shortcomings violate Article 2 of the European Convention on Human Rights which
enshrines the right to and which places a positive duty on the state to secure life. Investigations of deaths in
custody are secretive, slow and not independent. The relatives of the deceased are too often excluded and
marginalised. To them, the investigation can often appear less a search for truth than an attempt to avoid
blame, frustrate disclosure, restrict the remit of the investigation and demonise the deceased.
We gave a detailed submission to the Home OYce Fundamental Review of Coroner Services153 detailing
our concerns about the investigation and inquest system based on 21 years of advising bereaved families,
monitoring post death investigations and attending inquests around the country.
“Any new system [of investigation] needs to operate within a framework that ensures openness,
accountability, compatibility with the Human Rights Act and sensitivity to bereaved people and the public.
To establish such a framework there needs to be clear national protocols for all aspects of post-death
investigation. Those protocols need to enshrine clearly defined mechanisms of accountability, minimum
levels of service delivery and a system of sanctions where practice falls below acceptable standards. The
protocols need to set out clearly the rationale for each step that is taken, in a manner that is understood by
professionals, bereaved people and the public. Above all it needs to be a system that balances the needs of
the State with those of bereaved people and ensures that all participants have an equality of resources and
information. Whilst the process will be painful for bereaved people it will be more bearable if it is seen to
have legitimacy and meaningful outcomes.”154
Public campaigns pursued by bereaved families following controversial deaths in custody and following
major disasters have focused attention on the investigation process following contentious deaths in custody
and the inadequacy of the coroners court as a forum for the examination of deaths where the state is
suspected of having some responsibility. INQUEST monitoring has shown how the state uses the inquest
and not the criminal prosecution and trial for the public examination of these deaths. These factors have
serious consequences for families faced with an unexpected or violent death.
“The narrow focus of the inquiry puts artificial and invidious limits on the scope and style of conduct of
the Coroner’s inquiry, which often exclude from the inquest the issues of greatest concern to the family. The
inquest is usually the only investigation of death to which a family has access. Importantly, for the public
interest and democratic accountability it is the only public forum in which contentious deaths will be subject
to scrutiny. Inquests are too often at risk, particularly in the absence of legal representation for the family,
of being opportunities for oYcial and sanitised versions of deaths to be given judicial approval—rather than
being an opportunity for the family to contest the evidence presented, to discover the truth and full
circumstances surrounding the death of their loved one.”155

153 How the inquest system fails bereaved people—INQUEST’s submission to the Fundamental Review of Coroner Services—
Deborah Coles and Helen Shaw—INQUEST 2002.
154 Coles and Shaw op cit.
155 Coles and Shaw op cit.
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5. Investigations

Accessibility
Too often families are left isolated from the investigation process. They are unable to access the
investigators let alone the actual investigation. Frequently families are contacted immediately after the
death and asked to co-operate or participate in the investigation of their loved one. At this very early stage
they will be going through a whole myriad of emotions. Grieving for their loved one, angry frustrated at the
level of information forthcoming. There may also be feelings of guilt and of course shock.
When an investigator who is viewed as part of the Prison or Police Service then asks at this stage of the
bereavement process for the family to be involved in the investigation it is not surprising that families are
unwilling or more likely, are unable to get involved. This is before they have had chance to clarify in their
mind what the issues they feel are relevant and when they are in no mental state to answer fully or accurately.
In our view for a family to properly participate in any investigation they need time and space and often
support from a third party such as someone from INQUEST or a solicitor/advisor. Their role can be very
important in determining the terms of reference and scope of the investigation. Again if they were informed
from the outset that they could participate in the investigation with the assistance of a third party and have
a say in the terms of reference it might go someway to reassuring them that the death is being taken seriously.
Clear issues of sensitivity arise from such interviews. Irrespective of whether or not a family decides to have
full participation in the process they should still be kept informed of the progress of the investigation.
INQUEST believes that more work needs to be done in this area and that we have an important role to play
in this.

The investigators
All the investigators into deaths in prison are currently employees of the Prison Service. These
investigators have often been unable to establish a relationship with families who are very often not
confident in the way a death is being investigated because it is not seen as independent of the prison service.
This of course is multi-factorial but issues of impartiality are paramount. A clear need for independent
investigators is required and well documented in previous submissions made by INQUEST. In the recent
death at HMP Styal the Prison Ombudsman was asked to investigate. However from the contact we have
had with some of the families aVected, it has not been clear to them that the PPO is independent from the
Prison Service. This needs to be made more explicit. There may well be a need to have prison employees
involved in the investigation but the need to demonstrate independence is paramount.

Length of an investigation
It is our experience that investigations into police and prison deaths are not generally released to the
family until there is a date for an inquest. The inquest may not be held for 6—12 months, sometimes longer.

In a recent case involving a restraint related death in police custody the family was informed that
although the inquest was unlikely to be heard for at least a year, possibly longer it was unlikely that
they would receive disclosure until 28 days before the inquest. This is in line with the pre-inquest
disclosure guidance but in view is completely unreasonable. We do not see why the investigation
reports are not disclosed immediately on completion. This would also allow the family/family lawyer
to raise matters that they do not feel have been addressed in the investigation (see paragraph below
on disclosure of information).

Disclosure is not provided as of right, not provided early enough and is too obstructive and allows
material to be kept secret. In our experience disclosure is something the family/family lawyer has to fight
for. The introduction of the voluntary protocol in April 1999 has brought some clarity to the process of
disclosure and was welcomed but many problems still remain, particularly in the most contentious cases.
Early disclosure of custody-generated documents is vital if the family and their representatives are to have
eVective and constructive participation in the investigation.

Findings and recommendations arising from investigations and inquests

Funding
It has often been lawyers instructed by families in pushing the boundaries of the inquest system who have
helped to expose through their legal representation systemic and practice problems that have contributed
to deaths. Indeed many of the changes to police/prison training and guidance or public awareness of health
and safety issues have been as a direct result of families representation at inquests and our lobbying work
thereafter for change and for lessons to be learnt.
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Ev 96 Joint Committee on Human Rights: Evidence

There is unlimited public funding for experienced and quality lawyers to represent the Police while union
or association funding is available for the police oYcers, or medical oYcers. INQUEST believes that where
such a death occurs there should be an automatic right to public funding for legal representation without
means testing. Although there has been some progress and all deaths in custody (though not involving
deaths following police pursuits) are now recognised as coming within the scope of the funding code.
Relatives of the deceased whom the law recognises have a legitimate interest cannot aVord to take up that
representation unless they are eligible for legal aid which eVectively excludes a lot of low and middle income
families. The Legal Services Commission has taken a very restrictive interpretation of eligibility.
The recent decision of Khan will improve the situation as it has resulted in a new statutory instrument156
that gives the power to the Legal Services Commission to ask the Secretary of State at the Department of
Constitutional AVairs to waive financial eligibility criteria in requests for funding for representation in
inquest cases that engage Article 2.
The narrow remit of the inquest and its dependence on the police/prison investigation prohibits
exploration of the wider policy issues or indeed any mention whatsoever of any other death than the one
currently being investigated. Indeed the High Court in the Sacker case and the House of Lords in Amin157
have recently questioned whether the present coronial system is an appropriate means for looking into cases
that raise wider issues of concern.
Coroners have very wide discretionary powers to determine the scope of each inquest and although there
is case law specific to deaths in custody that requires a “full and fearless investigation”, that is open to wide
interpretation. There is great variation in their practice and similar deaths in diVerent parts of the country
may be treated in very diVerent ways.
The majority of information that has entered the public domain about deaths in custody has arisen only
because of the deceased’s family and friends full participation in the inquest proceedings facilitated by their
legal representation. It is very rare for a coroner in the absence of legal representation on behalf of the
deceased to conduct the kind of searching questions that occur when a family is represented. Many coroners
are ill-equipped and are unaware of what is happening nationally to clean an understanding of broader
policy issues surrounding custody type deaths or have not been provided with all the relevant disclosure by
the police because they have not known what to request. The issue of resources is also a serious problem for
coroners. This is very relevant when considering the inquest is the only public forum in which these deaths
are subjected to any scrutiny and where systemic failings can be exposed. We are aware that there are custody
deaths that have not been properly scrutinised because families did not have information and the resources
or where the deceased had no interested family.
Our experience of such inquests is that lawyers representing custodial institutions are consistently
instructed to take a defensive approach to the proceedings, trying to shroud what has happened or to attack
the character of the deceased rather than assisting the court in the exercise of an impartial scrutiny of the
death. In addition the approach to the inquest from the authorities as a damage limitation exercise means
that there has been a reluctance to learn from these investigations.

The recent inquest into the death of Roger Sylvester gives a good example. The lawyer acting on
behalf of the Metropolitan Commissioner paid for out of the taxpayers purse via the Metropolitan
Police Authority did not take a neutral role but launched an attack on the deceased and the lawyers
and family campaign accusing us of having a political agenda.

We also see this post death where misleading, inaccurate information is placed into the public domain by
police about the death in an attempt to demonise the deceased, blame them for their own death and deflect
attention away from the conduct of the police.

6. Implications of the Human Rights Act

The limited ambit of investigations, ineVective inquiries and the failure to prosecute those responsible has
all been issues for bereaved families. They have also increasingly become an issuein law both in the ECHR
and in the domestic courts.
Where a citizen dies or suVers ill treatment in custody, the reaction of the State raises very serious
questions about the protection of human rights. As a public authority the Police/prison service/has to
comply with the Human Rights Act and all courts and tribunals including the coroner’s court are also under
a duty to ensure that convention rights are protected.

156 The Community Legal Service (Financial) (Amendment No. 2) Regulations 2003. Statutory Instrument 2003 No. 2838.
157 SSHD v Amin 16 October 2003.
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Joint Committee on Human Rights: Evidence Ev 97

There is already in existence case law about the importance of a full inquiry into deaths in custody and
indeed under the Coroners Act there is a requirement for an inquest with a jury to sit on such deaths. The
problem is that under the Coroners Act 1988 the inquest has a very narrow remit and is manifestly not a
public inquiry; it is concerned primarily with establishing the medical cause of death, how the person died,
by what means and not in what broader circumstances.
The most significant recent development in coronial law has to be the implementation of the Human
Rights Act and the direct incorporation of Article 2 (the right to protect and safeguard life) into domestic
law. The obligation on the state to protect the right to life requires the state taking appropriate measures to
protect life, to investigate deaths and ill treatment in custody thoroughly and to prosecute where there is
suYcient evidence to justify proceedings.
The obligation to take positive steps to protect life also requires some sort of investigation where death
has occurred in a way, which engages Article 2 and 3 of the Convention because any fault in the system for
protecting the right to life may well lead to further deaths (McCann v UK) and the lack of an eVective
investigation will in itself constitute a violation of Article 2.
The decision of the House of Lords on 16 October this year in the case of the SSHD ex-parte Amin,
establishes once and for all consistent minimum standards for the state’s duty to investigate deaths in
custody.158

The case arises out of the murder in a cell at Feltham YOI of Zahid Mubarek by his cellmate
Robert Stewart. Despite a wealth of evidence warning of the dangers posed by Stewart, from his
previous violent conduct in custody, his volatile mental state and racism they had been allocated to
share a cell for 6 weeks before his murder. There was a complex history of investigations by the police,
the Prison Service and the CRE, However no public hearings had been held and no opportunity
arouse for the significant involvement of the next of kin.

The House of Lords ruled that whichever form the investigation takes there are minimum standards,
which must be met as, set out in Jordan v UK159 and Edwards v UK. The Court concluded in Jordan that
there were five essential requirements of the investigatory obligation: independence, eVectiveness,
promptness and reasonable expedition, public scrutiny and accessibility to the family of the deceased. The
lack of an investigation which embodies the requisite qualities will and of itself constitute a violation of
Article 2.
It ruled that such requirements apply with at least equal force to a “state neglect” or omission case
(relevant to deaths in police custody) as to a state ‘lethal hands’ case.
The approach to the House of Lords to the inquest issue is instructive. The coroner’s aYdavit explained
her exercise of her discretion not to hold an inquest into this case (a discretion coroners have where a criminal
trial has taken place) She gave detailed reasons why the resource and procedural restraints to which coroners
and inquests are subject make an inquest an unsuitable vehicle for investigating publicly the issues raised by
this case.
It was conceded for the family that in principle an independent police investigation and an inquest are
capable of fulfilling the “Jordan” requirements and the state’s investigative obligations as established by
McCann as to the adequacy of the Gibraltar/SAS shootings inquest.
Many of INQUEST’s concerns about the inquest process were put forward for the family at the Amin
hearing including: inconsistency of disclosure of evidence to the family despite the Home OYce circular,
inconsistency of funding, the narrow boundaries to the jury’s findings, coroners current restrictions upon
system neglect. The Amin judgement recognises these concerns as legitimate and these comments are a
vindication of our concerns about the inadequacy of the current inquest system in relation to contentious
deaths in custody.
The Lords accepted the coroners reasoning both as to the problem of resources and legal restriction and
agreed that many of the issues needing investigation ‘would be beyond the scope of inquest. Lord Bingham
refers to the Home OYce review of coroners recommendations indicating that if implemented they would
avoid such problems and adding that “no doubt they are receiving urgent oYcial attention.” (our emphasis).
There is now strong recognition of the need for more eVective investigation than can be currently provided
by inquests. The issues raised about individual and system neglect in the Amin although rare are sadly not
unique. Until substantially reformed there is strong judicial recognition for the need for more eVective
investigations than can currently be provided by inquests and provides an important incentive to accelerate
the programme for inquest reform.

158 See INQUEST Law Winter 2003 Article by Paddy O’Connor QC.
159 Jordan and ors v. UK (4 May 2001) ECHR.
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Ev 98 Joint Committee on Human Rights: Evidence

This legally significant case has been brought about because of the courageous struggle by the family of
the deceased whose campaigning will contribute to the future protection of vulnerable prisoners. Lord
Bingham recognised this as one of main purposes of the investigation and thereby humanely connected the
needs of the bereaved with the duties of the state.160

7. The Treatment of Families


Finally we would draw the Committee’s attention to the poor treatment of bereaved families following
deaths in custody. Despite a wider acknowledgement of the issues faced by bereaved people discussed below
this thinking has bypassed families aVected by deaths in custody.
In our submission to the Fundamental Review of Coroner Services161 we wrote:
“In our experience the nature of the circumstances of many of the deaths on which we work inherently
attracts prejudice and strong feelings and the majority of families we work with do not experience the system
as compassionate. Families feel overwhelmingly excluded, dissatisfied and let down by it as a process for
establishing the facts. The coroner’s inquest has become an arena for some of the most unsatisfactory rituals
that follow a death—accusations, deceit, cover-up, legal chicanery, mystification; everything but a simple
and uncontroversial procedure to establish the facts.
There have been some important procedural changes but little substantial systemic change. Some of the
more recently appointed coroners do have a diVerent approach to their work but like many institutions what
is needed is a culture shift. There are important developments taking place in the wake of the Alder Hey
scandal and the beginnings of a greater understanding of the support needs of families following sudden and
unnatural death. However, we remain concerned that the mainstream provision of bereavement support is
delivered in the absence of evidence-based research on the particular impact of bereavement and the inquest
process. It is also clear that those families who suVer the death of a loved one in custody are not considered
in any of the initiatives taking place. There seems to be an institutional inability for the authorities to
acknowledge that the need of a family whose loved one has died in custody are just as acute as those of
someone who has lost a loved one following a death in hospital or a murder. However most new
bereavement initiatives do not appear to have considered these families at all.”162
With custody related deaths the lack of support and appropriate assistance is more acute with families
feeling doubly victimised—they have suVered a death and because of its nature they are treated as though
they are criminals.
All deaths in custody involve an inquest so the potential role of the Coroner’s Service in guaranteeing
informed and eVective access to appropriate bereavement intervention options for bereaved families must
therefore be a central concern in developing a new system.
Finding out how someone has died is a fundamental human right and an essential part of the bereavement
process and in coming to terms with the death. All of the families who have sought our assistance have been
motivated by a need to establish the truth for their own peace of mind, and to prevent others going through
the same experience. Above all, they want an acknowledgement of fault or responsibility where appropriate,
an apology where an apology is due, for justice to be seen to be done and for lessons to be learnt.
Maximising the possibility for families and friends to discover the truth is the guiding principle of
INQUEST’s casework service. The family can have a real information deficit after a death in custody. They
have a very steep learning curve to understand the various investigations that are initiated by such a death.
Some argue that the family should not be overloaded with information. Access to proper information and
advice is crucial in ensuring that people are aware of their rights and it is the responsibility of the State to
ensure that this happens at the earliest possible opportunity.
This should include information about access to the body, post-mortems, organ retention, rights
regarding disclosure, the inquest process, and legal rights.
“The way families are informed of a death and the treatment they receive from oYcialdom at this stage
can crucially set the tone for the way they are able to interact with the process.”163
In our submission to the Prison Ombudsman on the treatment of families we documented our concerns
about the poor treatment of families by many state agencies and the need for families to receive clear,
accessible and accurate information about the circumstances of the death and where they can seek advice
and support. It is a matter of real concern that there is still no mandatory requirement on the part of the
police/prison service/NHS to give out INQUEST’s details and information leaflet. This happens on an ad
hoc basis only and is entirely dependent on the individual with contact with the bereaved. Provision of our
information would at least give families the choice as to whether or not they contact us. We have too many
families contacting us at a later stage in the process having been referred by friends/press etc and who would
have benefited from specialist advice and emotional support much earlier.

160 O’Connor op cit.


161 Coles and Shaw op cit.
162 Coles and Shaw op cit.
163 Coles and Shaw op. cit.
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Joint Committee on Human Rights: Evidence Ev 99

A recent example of this is the mother of a young woman who took her own life in Styal prison in
November 2002. She was given no information about INQUEST from the Prison Service or the
Prisons Ombudsman when in contact with her as part of their investigation into Styal.
The mother of the deceased found about us via a small advice service in North Wales and contacted
us for help. We have been able to find her a solicitor to assist her with preparing for the inquest which
is yet to be heard and to refer her to a family who have been through a similar experience for
emotional support. The result of the failure to refer the mother to us a year ago is that she has been
alone and unsupported.

December 2003

Name Ethnicity Date/type Location/force Prosecution Inquest Verdict

Oliver Pryce Black 1990 Police Cleveland Police No Yes Unlawful killing
Omasase Lumumba Black 1991 Prison HMP No Yes Unlawful killing
Pentonville—
London
Leon Patterson Black 1992 Police Manchester No Yes Unlawful killing
Police quashed; new
inquest 1996
misadventure
contributed to
by neglect
Joy Gardner Black 1993 Police/ Metropolitan Yes—acquitted No No inquest
Immigration Police
oYcers
Richard O’Brien Irish 1994 Police Metropolitan Yes—acquitted Yes Unlawful killing
Police
Shiji Lapite Black 1994 Police Metropolitan No Yes Unlawful killing
Police
Alton Manning Black 1995 Prison HMP No Yes Unlawful killing
Blakenhurst
Kidderminster
David Ewin UK White 1995 Police Metropolitan Yes—hung jury No No inquest
shooting Police
Ibrahima Sey Black 1996 Police Metropolitan No Yes Unlawful killing
Police
Christopher Alder Black 1998 Police Humberside OYcers Yes Unlawful killing
Police charged with
and acquitted
of manslaughter
in 2002
James Ashley UK White 1997 Police Sussex Police Yes—acquitted No No inquest
Roger Sylvester Black 1999 Police Metropolitan No Yes Unlawful killing
Police

Appendix 1

DEATHS IN PRISON CUSTODY 1993–2003

Classification 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

Self-Inflicted 48 59 59 64 69 83 91 81 72 95 90 811
Non-Self-Inflicted 2 5 7 53 47 45 55 57 50 55 65 441
Homicide (NSI) 1 2 3 2 2 6 0 3 1 0 1 21
Control & Restraint 0 1 3 0 0 0 0 0 0 0 0 4
Awaiting 0 0 0 0 0 0 0 1 1 3 2 7
Classification
Total 1284
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Ev 100 Joint Committee on Human Rights: Evidence

BLACK DEATHS IN PRISON 1993–2003

Classification 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

Self-Inflicted 3 3 8 3 6 9 7 8 5 8 6 66
(Percentage) 6% 5% 14% 5% 9% 11% 8% 10% 7% 8% 7% 8%
Non-Self-Inflicted 1 1 0 5 6 5 10 1 2 1 6 38
(Percentage) 50% 20% 0% 9% 13% 11% 18% 2% 4% 2% 9% 9%
Homicide (NSI) 0 1 0 1 0 0 0 1 0 0 0 3
(Percentage) 0% 50% 0% 50% 0% 0% 0% 33% 0% 0% 0% 14%
Control & Restraint 0 0 3 0 0 0 0 0 0 0 0 3
(Percentage) 0% 0% 100% 0% 0% 0% 0% 0% 0% 0% 0% 75%

YOUTH DEATHS (21 AND UNDER) IN PRISON 1993–2003

Classification 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

Self-Inflicted 3 12 11 14 16 15 19 18 15 16 13 152
(Percentage) 6% 20% 19% 22% 23% 18% 21% 22% 21% 17% 14% 19%
Non-Self-Inflicted 0 2 0 3 1 3 1 0 0 2 2 14
(Percentage) 0% 40% 0% 6% 2% 7% 2% 0% 0% 4% 3% 3%
Homicide (NSI) 0 0 1 0 2 1 0 2 0 0 0 6
(Percentage) 0% 0% 33% 0% 100% 17% 0% 67% 0% 0% 0% 29%

JUVENILE DEATHS IN PRISON 1993–2003 (AGED 17 AND UNDER)

Classification 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

Homicide (NSI) 0 0 1 0 0 0 0 0 0 0 0 1
0% 0% 33% 0% 0% 0% 0% 0% 0% 0% 0% 5%
Self-Inflicted 1 2 1 1 1 3 2 3 3 2 0 19
2% 3% 2% 2% 1% 4% 2% 4% 4% 2% 0% 2%

NB these figures are also included in the table of Youth deaths above

DEATHS OF WOMEN IN PRISON 1993–2003

Classification 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

Self-Inflicted 1 1 2 2 3 4 5 8 6 9 14 55
(Percentage) 2% 2% 3% 3% 4% 5% 5% 10% 8% 9% 16% 7%
Non-Self-Inflicted 1 0 0 2 1 1 4 1 1 2 1 14
(Percentage) 50% 0% 0% 4% 2% 2% 7% 2% 2% 4% 2% 3%

DEATHS IN POLICE CUSTODY—ALL FORCES 1993–2003

Type 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

Custody deaths 36 52 48 57 58 65 46 36 34 47 38 517


Pursuit 2 1 2 9 17 10 8 24 26 34 22 155
RTA 0 0 2 4 6 8 6 5 9 7 9 56
Shooting 3 1 2 2 0 2 3 2 4 2 2 23

BLACK DEATHS IN POLICE CUSTODY—ALL FORCES 1993–2003

Type 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

Custody 3 8 3 9 11 6 8 4 6 8 6 72
(Percentage) 6% 22% 6% 19% 19% 10% 12% 9% 17% 24% 13% 14%
Shooting 0 0 0 0 0 0 0 0 1 1 0 2
(Percentage) 0% 0% 0% 0% 0% 0% 0% 0% 25% 50% 0% 9%
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Joint Committee on Human Rights: Evidence Ev 101

POLICE CUSTODY DEATHS—RESTRAINT ISSUES RAISED 1993–2003

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Total

All Forces 2 5 7 5 5 9 6 5 5 5 7 75
(Percentage) 6% 10% 15% 9% 9% 14% 13% 14% 15% 11% 18% 15%

Source for all statistical information: INQUEST monitoring.


* Figures for Black deaths, Youth deaths, restraint-related deaths and deaths of Women are all included in
the relevant tables for deaths in Prison and Police custody.
* All percentages refer to the proportion of the total number of that classification of death in that year or
total.

14. Memorandum from the Law Society


Thank you for the invitation to provide evidence to the JCHR’s inquiry into Human Rights and Deaths
in Custody. We would like to take this opportunity to make some particular points about the legal process
following a death in custody.
There is a positive obligation on the State to prevent real and immediate risk to life. Article 2 (1) of the
European Convention on Human Rights, which has been incorporated into domestic law by the Human
Rights Act, emphasises that the right to life “shall be protected by law”. This requirement on the State
includes both protection from the intentional taking of life as well as the requirement to take “reasonable
preventative measures to protect an individual whose life is at risk . . .”.164
According to data held by the organisation INQUEST, 627 people have died in police custody since 1990.
Between 1998–99, 65 people died in police custody, “the largest number of deaths in police care or custody
on record”, according to the Police Complaints Authority.165 Although the figures have reported a decrease,
this issue is still of serious concern.
According to that data, since 1990 there have been 114 black deaths in prisons in the UK and in the same
time period 67 black deaths in police custody. A total of 181 black deaths occurred while individuals were
under the custody or care of the State.166
The disproportionate disparity in the number of prisoners who are black and from ethnic minorities
should not be ignored.
Because of the sensitive nature of death in custody cases, vigorous independence must be demonstrated.
Previous reports examining the system from death through the inquest have raised the issue of public
perception regarding bias in decision-making of the Crown Prosecution Service (CPS). The number of
deaths in police and prison custody and the lack of prosecutions have reinforced the real or perceived bias
of the CPS. The obligation of the CPS to produce “cogent reasons for not issuing proceedings”167 may assist
the public in their perception of independence.
The Society welcomes the establishment of the Independent Police Complaints Authority as a positive
step towards building confidence in the system, and views the independent investigation of every death in
custody as a possible homicide as essential.
In addition to concerns of bias, families of the deceased have had to contend with considerable delays.
There are countless examples of delayed cases, and many still awaiting closure, adding much undue stress
to already traumatised families. For example, Roger Sylvester, a black man, died in January 1999 following
restraint by eight Metropolitan police oYcers. His inquest began in September 2003, nearly five years after
his death.
David “Rocky” Bennett was a 38 year-old black man who died in October 1998 following an incident
involving the use of restraint in an NHS medium secure unit. His 2001 inquest returned a verdict of
Accidental Death aggravated by Neglect with recommendations from the Coroner on the need for national
standards on restraint in psychiatric hospitals, and for staV to be pro-active in dealing with incidents of racist
behaviour by and against patients.168 Following calls for a public inquiry, the Government has agreed to an
extended form of the usual inquiry that follows a death in psychiatric detention with a public element
looking at the national lessons to be learnt. The inquiry began in March 2003.
The Law Society supports proper initiatives to remedy the delays in investigating deaths and concluding
proceedings.

164 R (Amin and Middleton) v Secretary of State for the Home Department [2002] 3 WLR 505.
165 Police Complaints Authority, “News and PCA Reports – Deaths in Police Care or Custody”, 1999.
166 See INQUEST statistics www.inquest.gn.apc.org
167 Rule 28 of the Coroners Rules 1984.
168 INQUEST (2003) Press Release: Public Sessions of the Inquiry into the Death of David “Rocky” Bennett.
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Ev 102 Joint Committee on Human Rights: Evidence

The Law Society has particular concerns about the eVect on the ability of bereaved families to participate
and feel included in the inquiry into the death. It has been documented that current disclosure arrangements
at inquests fall below modern judicial standards in openness, fairness and predictability.169
The Law Society supports the disclosure of information to bereaved parties throughout the inquest
process.
The ability of families to participate in the inquest process is greatly enhanced by the availability of public
funding for representation at inquests. The Law Society welcomes the announcement that exceptional
funding will apply to all deaths in custody. However, we are concerned about the practice of means testing
wider family members in inquest cases.
The Law Society supports reporting from the Coroner following an inquest to relevant authorities and
monitoring to help prevent future deaths.
15 September 2003

15. Memorandum from Liberty

Introduction
1. Liberty welcomes the Joint Committee on Human Rights call for evidence into Human Rights and
Deaths in Custody. Liberty published a report in March 2003 Deaths in Custody: Rights and Remedies170.
There is extensive common ground between the contents of that publication and this submission. Many of
the comments made will reflect those in our earlier submission.
2. We are not responding to some of the questions on the causes of deaths in custody as we do not have
expertise in this area and imagine there are a number of organisations who will be able to provide detailed
responses.

Preventing Deaths in Custody


3. We believe a human rights approach to conditions and management of detention can have a significant
impact in preventing deaths in prison custody. Human rights are too frequently considered simply in terms
of the Human Rights Act 1998. Because of this “human rights” only become an issue when a threshold has
been reached. In Article 3 cases the European Court of Human Rights has defined torture as “deliberate
inhuman treatment causing very serious and cruel suVering”171 while in the same case degrading treatment
was described by the Commission as “. . . ill treatment designed to arouse in victims feelings of fear, anguish,
and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral
resistance”. Inhuman treatment has been defined by the Commission as “. . . such treatment as deliberately
causes severe suVering, mental or physical, which, in the particular situation is unjustifiable.”172 Clearly
these are diYcult hurdles to overcome and in many cases where a prisoner feels he has been treated in a
degrading manner Article 3 will not be engaged.
4. However, the majority of suicides and incidents of self harm in prison will not occur as a result of one
particular incident that has breached Article 3 but rather the culmination of a series of minor incidents.
Education and training in rights and entitlements for prisoners and prison staV will help identify types of
treatment which might be “degrading” but do not engage Article 3.
5. We believe that a “human rights culture” is best achieved through the creation of a statutory joint
Equalities and Human Rights body. The government has already indicated its intention to set up a Single
Equality Body through consultation exercises early in 2003173. This body will be able to provide advice and
assistance to prisoners who are concerned over treatment of the grounds of race, sexuality, religion, gender,
disability or age. This will necessarily be limited to those situations where equality is an issue. It would not
be able to assist when equality did not feature in a complaint. The inclusion of human rights in the remit of
a Single Equality Body will “fill in the gaps” between the diVering equality strands and (depending on the
remit of such a body) provide greater recourse to prisoners. We are also in favour of the proposal to create
a statutory Prisons and Probations Ombudsman with powers to investigate complaints and deaths in prison
and approved premises. As with any public body with the power to investigate complaints we would
emphasise the importance of relevant and adequate human rights training.

169 Fundamental Review of Death Certification and the Coroner Services in England, Wales and Northern Ireland (2002)
Certifying and Investigating Deaths in England, Wales and Northern Ireland p 13 paragraph 20.2.
170 Deaths in Custody: Rights and Remedies Dr Greta S Vogt & John Wadham. Published by the Civil Liberties Trust and is

available from Liberty or at www.liberty-human-rights.org.uk. Danny Friedman at Matrix Chambers drafted much of the
text on Article 2 violations.
171 Ireland v United Kingdom (1979–80) 2 EHRR 25.
172 Greek Case 12 YB 1.
173 “Equality and Diversity: The Way Ahead” and “Equality and Diversity: Making it happen”.
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Investigations of Deaths in Custody


6. Article 2 ECHR, The Right to Life, is often said to be the most fundamental of Human Rights, the
basic pre-condition of the enjoyment of other rights.174 The first sentence of Article 2(1) emphasises that a
persons right to life “shall be protected by law”. It has been held that this requires the state not only to refrain
from the intentional and unlawful taking of life but also to take steps to safeguard the lives of those within
its jurisdiction175. In addition the state is required to give appropriate training, instructions and briefings to
those agents who may be faced with a situation where death could occur under their control or
responsibility.176 The right has also been identified as extending to taking positive steps to prevent suicides
of those in state custody. In Keenan v UK177 the European Court of Human Rights (ECtHR) stated that
obligations under Article 2 extended to a duty to prevent self-inflicted deaths in custody where the
authorities were on notice of a “real and immediate risk to life”. Similarly not receiving proper medical
treatment when the prisoner suVers from an illness could amount to a violation178, and a failure to
communicate relevant information could give rise to an Article 2 violation if this failure results in a person
not being adequately cared for.179
7. The obligation to take positive steps to protect life also requires some form of investigation where
death has occurred in a way which engages Article 2 or 3 of the Convention180. The lack of an eVective
investigation will in itself constitute a violation of Article 2. This extends beyond deaths that occur as a result
of the actions of those who work for the state to self inflicted deaths in prison181, and to circumstances that
lead to an inmate being placed in a cell with someone who is dangerous182. In Jordan v UK183 and Edwards
v UK the ECtHR held that in order to satisfy the requirements of Article 2, any investigation had to satisfy
four criteria (the “Jordan criteria”):
— it must be independent from those implicated in the facts;
— it must be capable of leading to a determination of whether state agents are liable for the death
and/or the identification of those responsible and (if appropriate) their punishment;
— it must be prompt;
— it must involve a suYcient element of public scrutiny and must involve the next of kin in the
investigative procedure to the extent necessary to protect their legitimate interests.
8. The Court of Appeal in R (Amin and Middleton) v Secretary of State for the Home OYce184
unfortunately appears to have taken to view that the Jordan criteria are not binding. It held that Article 2
could not be defined by strict rules and that it is up to domestic courts to decide what is required to determine
convention rights on a case-by-case basis, commenting at paragraph 61 “the task of our courts is to develop
a domestic jurisprudence of fundamental rights. Drawing on the Strasbourg cases of which by S2 HRA we
are enjoined to take account of but by which we are not bound.” We feel this approach is flawed for two
reasons. It is at odds with House of Lords and Court of Appeal authorities that have warned against
departing from clear and recent Strasbourg authority on the basis that it is likely to be overturned in
Europe185. More importantly, it fails to distinguish between the mandatory terms of the Jordan criteria and
the procedural flexibility that is aVorded member states in providing safeguards. The ECtHR has indicated
on a number of occasions that while the procedure by which due process entitlements are delivered are a
matter for individual states, the entitlements themselves are mandatory.
9. Because of this Liberty believes that the Jordan criteria are binding on the UK and the cornerstone of
any consideration into the manner in which the following state agents carry out investigations.

10. The coroner’s jurisdiction and the inquest


We are concerned that there is a lack of public confidence in, and understanding of, the inquest system.
According to the Coroners Act 1988, the coroner’s inquest is inquisitorial. In cases inquiring into deaths in
police or prison custody the coroner must sit with a jury. The coroner is under a duty to ensure that a
balanced and representative picture of evidence is available in court. As the system is inquisitorial rather
than adversarial it has fundamental diVerences to the criminal and civil courts. This can create problems,
especially for the relatives of the deceased, as to the function, transparency and eVectiveness of the system.
For example, there are no parties to the hearing and there are no formal allegations or proceedings. Instead
the jury will listen to the evidence and may ask questions, as may the coroner. After evidence has been given

174 R v Secretary of State for the Home Department, ex p Bugdaycay (1987) AC 514.
175 Osman v UK (1999) 29 EHRR 245.
176 McCann v UK (1995) 21 EHRR 97.
177 (2001) 33 EHRR 38.
178 McFeeley v UK (1981) 3 EHRR 161, R (Wright and Bennett) SSHD (2002) HRLR 1.
179 Edwards v UK (2002) 35 EHRR 19.
180 McCann v UK. Ibid 7.
181 Keenan v UK (2001) 33 EHRR.
182 Edwards v UK Ibid 10, R (Amin and Middleton) v SSHD (2002) 3 WLR 2002.
183 (2001) 33 EHRR 38.
184 (2002) 3 WLR 505.
185 R v Secretary of State for the Environment ex parte Alconbury (2001) 2 WLR 1389, R (Anderson) v SSHD (2002) 2 WLR.
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only the coroner can address the jury as to the facts and any legal representative will not be able to make a
closing statement as would happen in a criminal case. After summing up the evidence the coroner will set
down for the jury those verdicts he considers available and relevant. For a verdict of suicide or unlawful
killing the standard of proof is to the criminal level, for all other verdicts the civil standard applies.
Importantly, no verdict may determine any form of criminal or civil liability. Once a verdict has been
reached the coroner has the power to report the case to an appropriate authority with a view to action being
taken. However this recommendation does not have to be made public and the parties do not have a right
to be consulted or even to see the report.
11. The diYculty for the family of the deceased is how to make sense of inquest proceedings. It may be
quite easy for a lawyer to understand how a verdict of unlawful killing does not apportion blame or lead to
criminal liability but relatives do not. The family wish to find out “the truth” and where appropriate see the
prosecution of those responsible. Achieving both these aims might not be possible as the compelling of
evidence precludes that evidence being used in criminal proceedings, as this would breach the self-
incrimination provisions in Article 6. However, we believe much can be done to make the coroners system
more compatible with the Jordan criteria. If finding the truth is of paramount importance then the privilege
against self-incrimination could be abolished so that police and prison oYcers could be forced to give
evidence and answer questions at the inquest. Any evidence would of course not be permissible in any
subsequent criminal proceedings.
12. Generally inquests need clearer rules of procedure. The relatives of the deceased should be made a
formal party to proceedings and have a right to representation. They should also have the powers of a party
to civil litigation—to cross examine, to address the jury and to call witnesses. The inquest system should be
generally adversarial and the coroner should have an adjudicative role (while retaining the power to call
witnesses for example). The usual civil rules of disclosure should apply to the inquest. There should be a
review of existing verdicts which should include a verdict indicating negligence or a failure of a duty of care.
Properly interested persons should have a right to legal representation. This should not be means tested due
to the importance of such case and the public interest. The small number of cases involved would not mean
this was a significant drain on the public purse. There should be a right to appeal to the High Court on a
point of law. Making the inquest system similar to the civil courts procedure will make the process more
familiar, comprehendible and acceptable to the families of the deceased.

13. Investigations by the Prison Service


Liberty is in favour of the proposal to create a statutory Prisons and Probations Ombudsman (PPO) with
powers to investigate deaths in prison and approved premises. We are particularly pleased to see that the
PPO will investigate all deaths whatever the apparent cause. We do have some concern that the PPO will
be able to decide on the level of investigation required. For example when a prisoner has died due to “natural
causes” we would still want to see adequate investigation as death by natural causes does not preclude the
possibility of clinical oversight or negligence. We also support the proposal that the PPO should be able to
require witnesses to attend an interview and respond to questions about the death. However, as mentioned
above, this will certainly preclude the use of such evidence in subsequent criminal proceedings. As the new
body has not yet come into being we do not propose to comment in greater detail other that to say that
the consultation process into the setting up of the PPO seemed to have taken care to ensure that Article 2
considerations and the Jordan criteria had been taken into account. However, the consultation document
did not consider the issue of resources, possibly because it was not felt to be appropriate at that point.
Placing the investigation of deaths in prison custody onto a statutory footing is an important step to take
and we hope it is successful. It is vital that suYcient resources are made available to the PPO to ensure this.
It is important not to underestimate the resources needs for a proper, thorough and eVective investigation
which complies with the requirements of Article 2.

14. Investigations by the IPCC


Liberty has been involved in and supportive of the setting up of the Independent Police Complaints
Commission. We are optimistic that the IPCC will bring a public confidence in the independence of
complaints against the police that the Police Complaints Authority never enjoyed. As the IPCC will not
come into operation until April 2004 we can only base our comments on the proposals as they currently
stand. We are members of the Police Complaints Programme Board and have been sent a discussion paper
relating to the role of the IPCC in the investigation and supervision of complaints. We are pleased to see
this paper recognises the importance of Article 2 obligations at paragraph 4.1, “It is now settled law that
Article 2 of the European Convention on Human Rights contains a requirement that an eVective and
independent investigation be undertaken into any death involving agents of the state . . . Any failure on the
part of the IPCC to provide an eVective investigation of death, for example in police custody could give rise
to a successful Article 2 challenge”.
15. While we feel that the IPCC has the potential to act in a manner that will satisfy Article 2 obligations
we are concerned about the resources available. The IPCC has stated that it believes that 364 investigators
will be required to match the previous police investment in terms of investigator days. However, when the
IPCC begins work on 1 April 2004 it will have 70 investigators, approximately one fifth of the number
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Joint Committee on Human Rights: Evidence Ev 105

required. This number will increase with the further appointment of 70 investigators anticipated by
September 2004 but it will be several years before the IPCC has the number it regards as necessary. Indeed
there is no guarantee that it will ever be given a suYcient number of investigators.
16. This is of particular concern, as the Police Reform Act 2002, which set up the IPCC, does not
guarantee independent investigation even in the case of deaths in police custody. Paragraph 6.5 of the
investigations discussion document states, “After a few days of independent investigation of a death in
custody it may be recognised that the facts have been fully established, the truth of the matter has been
determined and there is no longer a need for public concern or IPCC independent investigation. At such a
stage any outstanding investigative responsibility could be handed to the police force concerned under the
continued management or supervision of the Commission”. We would question the impact on the deceased’s
relatives of an independent commission handing control back to the local force in any situation. Given the
current availability of investigators there must be the concern that any decision would by necessity be
resource driven. When we have raised these concerns we have been reassured by the IPCC that they would
not allow resources to dictate decisions inappropriately and we have no reason to dispute this. Bearing in
mind the Jordan requirement of independence from those involved it is vital that the IPCC do not take any
such decision lightly.

17. Criminal Prosecutions

It is in this area where the greatest concerns lie. As a decision to prosecute is usually taken before an
inquest has opened it can be extremely diYcult for the family of the deceased if no decision to prosecute is
taken, but a subsequent inquest indicates that a crime may have been committed. The coroner can refer a
case to the CPS if he comes across a criminal oVence or if the jury returns a verdict of unlawful killing, but
in practice this is rare. The closeness of the relationship between the CPS and other state agents can be seen
as a problem. In practice, no police oYcer has ever been convicted of any of the homicide oVences following
a death in custody. Since 1990 there have been eight deaths in custody where inquests have returned unlawful
killing verdicts. Seven of these were preceded by and followed by CPS decisions not to prosecute.
18. The Attorney General recently undertook a review of the role of the CPS in relation to custody deaths.
He was “impressed by the conscientiousness of the CPS lawyers . . . making the decisions” and found “that
they had done so diligently”186. However he also accepted that the families of the deceased held no
confidence in the decisions. Even if the CPS is acting in a diligent manner there is a clear perception problem.
While we are not convinced that there is a justification for setting up a new body, or transferring
responsibility to another body such as the IPCC, we believe that there is a need for improved performance
of the CPS. For example, a special unit could be directly responsible to the Director of Public Prosecutions
and separate from the rest of the CPS. Certainly there needs to be enhanced scrutiny of the decision making
process. There should be a statutory requirement to give full reasons behind a decision not to prosecute.
Families must be informed throughout the decision making process and during the prosecution itself. An
amendment to the Code for Crown Prosecutors could create a presumption that a prosecution would be in
the public interest—although this would clearly have to be rebuttable to avoid cases proceeding when not
relevant. Certainly all deaths in custody should be initially investigated as homicides so that the principal
aim is to secure evidence.

19. Civil proceedings

Although a civil action is primarily taken in order to obtain damages, there are distinct advantages over
the inquest process for the relatives. As claimants they will be in control of the process and, as disclosure
rules are more robust, they will have greater access to documents. As they will be represented, they will also
have the chance to call and cross-examine witnesses. Unfortunately, a plaintiV can generally bring an action
only if they were in some way dependant on the deceased187. It may also be considered unsatisfactory, as a
successful civil action has never been followed by a criminal prosecution, and even if successful there is
unlikely to be any disciplinary action.

20. A possible improvement to the current situation would be reform of the current civil action
provisions, including more recognition (financially and in eligibility of persons) for death in custody cases.
As mentioned earlier, the inquest system would benefit from greater similarity to the civil process and it is
arguable that the inquests could even be incorporated into the civil system. As well as overcoming many of
the problems faced by relatives of the deceased (as identified earlier) it would provide the possibility of a
“remedy” (albeit in civil law).

186 Summary of Conclusions: paragraph 6.1.


187 Unless there is a surviving course of action such as negligence in which case they do not have to be dependant.
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21. Other avenues


Public enquiries are not a useful remedy. They are time consuming, expensive and usually only arise after
considerable public pressure. We would like to see the inquiry process become less ad hoc, but rather being
incorporated into an oYcial part of the examination into deaths in custody. To this end Liberty strongly
recommends the creation of a separate, over arching, Standing Commission into Custodial Deaths. Its remit
would cover deaths both in prison and police custody as well as other institutions such as reception and
detention centres for asylum seekers. There are many common concerns that arise with deaths in diVerent
custodial settings and separate bodies prevent these concerns being addressed on a more holistic basis. The
mandate of such a commission would be to bring together the experiences from the separate investigative
bodies which deal with police, prison, hospital deaths and others. While it would not have any investigative
role, it should have the power to hold a wider enquiry in circumstances where there was a consistent pattern
of deaths. Except when conducting enquiries we do not believe the commission would need substantial
resources.
September 2003

16. Memorandum from the Medical Foundation for the Care of Victims of Torture
1. The Medical Foundation for the Care of Victims of Torture has helped more than 35,000 people with
medical treatment, psychological support and practical assistance at its north London treatment centre since
it was established in 1985. It is the only organisation in Britain dedicated solely to helping survivors of
torture and organised violence and their families. The Medical Foundation has a recognised expertise in the
documentation of torture. We currently prepare more than 1,000 medico-legal reports per year.
2. The Medical Foundation is an independent charity (company limited by guarantee, registered in
England no 2398586, charity reg no 1000340).
3. The Medical Foundation is staVed by approximately 210 volunteers and employees, including medical,
clinical and professional support staV. Essential to our services is our team of 95 regular and occasional
interpreters, who facilitate communication between staV and clients in some 60 languages.
4. The Medical Foundation will limit its submission to torture survivors who may, because of their past
experiences, be more at risk of suicide or self harm. The Committee is referred to our publication Protection
Not Prison: Torture Survivors detained in the UK188. Six main recommendations were made in that study:
— greater use should be made of Port Medical Inspectors to carry out initial medical examination of
asylum seekers;
— factors telling against detention should be recorded when the decision to detain is made;
— comprehensive physical and mental health screening should be oVered to all on arrival in
detention;
— staV in detention facilities should receive training to recognise and deal with health care issues,
including those of torture survivors;
— legal representatives should ensure that any medical evidence of torture is sent both to the section
of the Home OYce that deals with the decision to detain, and to the section that considers the
asylum application;
— Home OYce oYcials reviewing a decision to detain should check whether there is any information
on the asylum file relating to a history of torture.
5. These recommendations have not or have not adequately been followed up, in the view of the Medical
Foundation. Page 17 of the said report deals with our concerns regarding the mental health of the subjects
of the report and refers to one particular case where a torture risk had been unobserved:
The files of seven of the 15 men with psychological problems mentioned that medication was being
prescribed, usually sleeping tablets or antidepressants. The fact that something was prescribed
does not necessarily mean that the treatment was adequate. There were a few cases where the data
suggested that the case was not handled appropriately. One of these (16125) concerned a man who
was detained, first in Tinsley House and then in HMP Rochester after his appeal was dismissed.
His history of torture is given on page 6. He was receiving medication in Tinsley House and was
examined by a GP there on account of his erratic behaviour. The GP reported that it was not in
the patient’s interest to be sent to a mental hospital, since his detention was only for the purposes
of removal to his country of origin. His solicitor believed he was mentally ill and arranged for a
consultant psychiatrist to visit. By this time the man had been detained for two months. The
consultant reported that he was suVering from paranoid schizophrenia and that inpatient
psychiatric care was urgently needed. He was said to be a serious suicide risk and not fit to travel.
He was transferred to a secure psychiatric unit. It is clear in this case that Tinsley House failed to
deal with the case appropriately. The GP’s view that psychiatric treatment should not be pursued
for a detainee who was to be removed was patently wrong.

188 Dell, S & Salinsky, M, Medical Foundation for the Care of Victims of Torture, 2001.
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6. The Medical Foundation does not believe that the situation has improved since these case studies were
put forward in 2001. The Medical Foundation remains concerned that no mechanism exists
(notwithstanding the Detention Centre Rules) to identify torture survivors in detention so as to ensure that
adequate consideration be urgently given to the question of their continued detention. Indeed the
Immigration Service Detention Services were put on notice of similar issues in HMIP’s reports on Removal
Centres and specifically Strategic Recommendation 10:
Protocols should be agreed for the release of medical information, with consent, to the
immigration authorities and detainees’ representatives, if such information is relevant to fitness to
detain or the detainees asylum claim, and the action that should follow.
7. However, while accepting the concerns raised, Detention Services were unable to oVer a concrete and
immediate solution in the Action Point proposed:
Rule 35 of the Detention Centre Rules 2001 already provides for the reporting of health matters
likely to be aVected adversely by detention and on any case where the centre doctor is concerned
that the detained person may be a victim of torture. Systems are in place in removal centres and
the Immigration Service to ensure that such information is transmitted and taken into account in
the context of continued detention or the consideration of the persons asylum claim. There are
however, complex issues of disclosure and the Immigration Service is looking at ways in which the
flow of information might be improved consistent with the requirements of patient confidentiality.
8. This response concerns the Medical Foundation. Our own report dated 2001 (the year in which the
Detention Centre Rules came into force) highlights the very issue that Detention Services is only now turning
its attention. It was pointed out to Detention Services at its User Group meeting of 10 June 2003 that:
. . . the (Detention Services) Operating Standard on Health was insuYciently robust on ensuring
that action was taken in Removal Centres in respect of victims of torture . . . the proposed action
plan should refer to the EU Directive on Minimum Standards for the Reception of Asylum
Seekers189 (January 2003) which required the Secretary of State to lay down minimum standards
and that the Immigration Service would be remiss if it did not take the Directive into account.
9. The Medical Foundation has also oVered to discuss the issue of confidentiality and has in the past
suggested to detention Services that these issues are fully addressed in the BMA Handbook on Human
Rights190. Doctors under a dual obligation are examined at length therein. The Medical Foundation
considers that, if the will truly existed, the “complex issues of disclosure” could have been addressed some
time ago.
10. Unless and until the Immigration Service Detention Services apply themselves to the real risks
inherent in maintaining the detention of torture survivors (identified and unidentified) then cases similar to
those in our study of 2001 will continue to emerge and the risk of suicide and self harm among torture
survivors in detention centres remains a real risk.
16 September 2003

17. Memorandum submitted by Mind

1. Introduction
2. The Joint Committee on Human Rights has called for evidence relating to human rights and deaths
in custody. Mind is concerned about this issue as people with mental health problems account for a large
percentage of the total number of people in the custody of the State and the number of people who die in
custody. In a recent study, of 172 suicides which had taken place on 1999 and 2000, 72% of people had at
least one psychiatric diagnosis identified on entry to prison.191 Mind believes this inquiry needs to consider
people who are detained in the following settings:

(i) Prisons and police detention


(ii) Mental health institutions. This should include people who are technically detained under the Mental
Health Act and those who are in eVect unable to leave. This may arise from inability to express a wish either
to remain in hospital or be discharged or from being advised that if they attempt to leave, they will be
detained under the Mental Health Act. These two groups of people have none of the legal safeguards
associated with formal detention. We would therefore suggest that the inquiry encompasses all deaths which
take place in psychiatric in-patient settings.

189 203/9/EC of 27 January 2003.


190 The Medical Profession and Human Rights: Handbook for a changing agenda. BMA 2001.
191 Shaw J, Appleby L and Baker D, (2003) Safer Prisons: A National Study of Prison Suicides 1999–2000 by the National

Confidential Inquiry into Suicides and Homicides by People with Mental Illness, Department of Health.
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3. In addition, the high proportion of people from black and minority ethnic communities detained both
in in-patient psychiatric settings and in prisons is a cause for great concern. For example, a study in south
London found that black populations had a rate of admission to medium-secure units seven times higher
than their white counterparts (28 per 100,000 compared with 4 per 100,000).192 Following a number of cases
of deaths of people from these communities, particularly young black men, (for example the death of David
“Rocky” Bennett in 1998), it is evident that the needs of black and minority ethnic people need particular
attention.
4. In response to the questions raised by the inquiry, Mind would like to make the following points, many
of which apply equally to prisons and in-patient psychiatric settings. This response will cover the
following areas:
— what are the main causes of suicide and self-harm in custody;
— what are the main causes of other deaths and injuries in custody;
— cultural issues; and
— investigation of deaths in custody.
The submission concludes with a summary of recommendations.

What are Main Causes of Suicide and Self-harm in Custody?


5. Incidences of suicide and self-harm often arise either due to inadequate care and support available to
people whilst in a detained setting, or when conditions a person has been detained in are not conducive to
minimising anxiety and ensuring they feel safe. This may result in suicide or self-harm, or alternatively in
increased agitation or aggressive behaviour which may lead to physical restraint or increased medication
being used which has in the past led to deaths (see section on other deaths in custody). In addition some
forms of detention such as the use of police cells as places of safety under the Mental Health Act and the
use of seclusion cause particular concern.

6. Inadequate Care and Support


7. Mental healthcare provision in prisons is generally poor. Health provision remains dominated by
physical health concerns and the services available for people experiencing mental health problems have
been acknowledged as falling far below the standard generally available from the NHS outside prisons.193
8. People’s general level of mental health tends to deteriorate whilst they are detained in prison. In
addition to poor services, a number of factors contribute to this which are detailed below. Many of these
also relate to in-patient psychiatric care. The Ninth Biennial report of the Mental Health Act Commission
found that there are a number of issues relating to conditions which have human rights implications under
Articles 3 and 8, for example, denial of access to correspondence and family visits.194
9. Isolation from families. Many prisoners are placed in prisons a long distance from their home and it
is often diYcult for families to visit. This leads to increased social exclusion and can cause great distress.
10. Overcrowding and staV shortages. When prisons become overcrowded, services which have been put
in place to support vulnerable people become overwhelmed with the result that some people cannot access
support when they need it. StaV who are overstretched can fail to notice when someone is experiencing
distress. In addition, overcrowding leads to frequent relocation of prisoners.
11. Disruption due to relocation. If a prisoner who has mental health problems is moved from prison to
prison, any services or support they are receiving stop and relationships which they may have built up with
support staV are broken, often at short notice, and similar services may not be available in the prison they
are moved to.
12. StaV training. Prison staV generally receive little mental health awareness training and often do not
pick up signs that a prison is experiencing distress or be able to deal appropriately with a prisoner in distress.
13. Lack of information sharing. In many cases information from NHS health records relating to a
prisoner with mental health needs is not shared when they enter prison, making it diYcult to adequately
assess their needs and provide adequate services for them.
14. The National Confidential Inquiry into Suicides and Homicides by People with Mental Illness
(2003)195 made a number of recommendations, including:
— health screening at reception should be carried out by someone with relevant mental health
training;

192 Guite, H et al (1996) Diversion from courts and prisons to psychiatric care in a district. Unpublished report, Department of
Health and Epidemiology, Kings College London.
193 Reed, J L (2000) Inpatient care of mentally ill people in prison: results of a year’s programme of semistructured inspections.
194 Mental Health Act Commission (2001) Ninth Biennial Report, HMSO.
195 Shaw J, Appleby L and Baker D, (2003), ibid.
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— information regarding prisoners with prior mental health service contact should be obtained from
GPs, mental health services and others within 24 hours;
— mental health services and GPs should accept responsibility to share information with prisons and
should no longer impose charges;
— health and risk related information should be shared with all members of staV within the prison
who are responsible for the prisoner;
— a family hotline should be established within each prison to enable family members to obtain and
pass on information regarding suicide risk in prisoners; and
— all prisoners who have a history of mental health symptoms suggestive of serious mental illness or
a history of self-harm should have a multi-disciplinary care plan initiated at reception.
15. In addition, Mind recommends:
— the quality of mental health care available in prisons should be an equal level to that available
generally in the NHS;
— a range of services should be available and prisoners experiencing mental distress should have
access to a choice of treatments including talking treatments such as counselling and
psychotherapy;
— training for all prison oYcers should include a mental health awareness component;
— clear procedures should be in place for prisoners to seek advice or assistance with regard to mental
distress they are experiencing;
— prisoners engaging with mental health services involving a therapeutic relationship should not be
relocated unless this is unavoidable;
— prisoners using mental health services should not be relocated unless it is established that adequate
services to meet their needs will be available in the new location.

16. Environment in Which a Person is Detained


17. The physical environment in which a person is detained is a key component of developing a calm
atmosphere in which a detained person can feel safe and increased anxiety can be minimised. The Royal
College of Psychiatrists has issued guidelines for the design of mental health units with this in mind,196 which
Mind believes should be implemented.
18. These recommendations include:
— all areas are kept clean and tidy;
— reception areas are well planned;
— there are separate/designated areas for patients with police escorts;
— there is adequate natural lighting and fresh air;
— noise levels are controlled and crowding avoided;
— there is a perception of space;
— private space and rooms are provided;
— private toilet, bathroom and single sex areas are provided;
— private staV rest areas are provided;
— ambient temperature and ventilation are adequately controlled;
— safe activities inside and outside are provided, ensuring an access to fresh air;
— non-smoking and smoking areas are provided; and
— personal eVects are safe and accessible.

19. Places of Safety


20. Under section 136 of the Mental Health Act (1983), a person who is detained under section 136 may
be taken from a public place to a “place of safety” in order that the person can be assessed by a doctor and
interviewed by an Approved Social Worker. Local policies should be in place to define how this should take
place, and the Code of Practice states that “as a general rule it is preferable for a person thought to be
suVering from a mental disorder to be detained in a hospital rather than a police station”.197

196 Royal College of Psychiatrists College Research Unit (1998) Management of Imminent Violence: Clinical Practice Guidelines
to support mental health services (Occasional Paper OP41) London, Royal College of Psychiatrists.
197 Mental Health Act 1983 Code of Practice.
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21. In research undertaken by the Revolving Doors Agency in 1995, however, even where local
agreements had nominated a hospital as the usual location to be used as the place of safety, police cells were
still often used.198 Problems arise as police oYcers do not have the experience and training to deal with this
situation, and police cells are not designed in such a way as to provide a suitable or therapeutic environment
for someone experiencing mental distress.
22. Mind recommends that:
23. Police cells are not used as a place of safety under the terms of a new Mental Health Act, and that in
all areas, local agreements are made as to which locations are to be used as places of safety. In all cases,
individuals requiring a place of safety should be taken to a proper clinical setting.

24. Seclusion

25. Seclusion is the supervised confinement of a person in a room which may be locked. It is highly
distressing for individuals being held in this way. The Mental Health Act 1983 Code of Practice gives
guidance on how seclusion should be used and in a recent case, it has been established that these guidelines
should be followed in in-patient psychiatric care and breach of this could constitute a breach of human rights
(Articles 3 and 8).199 The majority of the guidelines outlined in the Code of Practice are also relevant to
prison environments. These include:
26. The sole aim of seclusion should be to contain behaviour which is likely to cause harm to others. It
should be used as a last resort and for the shortest possible time. It should not be used:
— as a punishment or threat;
— as part of a treatment programme;
— because of shortage of staV; and
— where there is any risk of suicide or self harm.
27. Mind recommends that in relation to seclusion, hospitals and prisons should:
— have clear written guidelines on the use of seclusion which ensure the safety and well being of the
person being detained;
— specify a suitable environment for seclusion to take place;
— set out the roles and responsibilities of staV; and
— set requirements for recording, monitoring and reviewing the use of seclusion.

28. Causes of Other Deaths or Injuries in Custody

29. Mind is aware of a number of cases where death has been linked to management of aggressive
behaviour involving restraint or medication. Several of these incidents have taken place when a person has
been detained in a police station prior to transfer to another setting, as well as in prisons, special hospitals
and other in-patient psychiatric settings.
30. Mind believes that in the management of aggression of people who are detained, and particularly
those who are experiencing mental distress, staV should take a holistic and preventative approach. If any
intervention is needed then treatment used to prevent violence must be neither hazardous nor irreversible.
31. A holistic approach should address:
— advocacy, support and information provision to detained people and family;
— the environment within which a person is detained;
— risk assessment, taking a multicultural approach;
— staV training on guidelines for carrying out control and restraint;
— documentation of the measures used for the purposes of restraint; and
— debriefing and learning outcomes for staV from each episode.
32. Further explanation of what Mind believes should happen in relation to some of these key areas is
given below.

198 Revolving Doors Agency (1995) The Use of Section 136 Mental Health Act in Three Inner London Police Divisions.
199 R (Munjaz) v Mersey Care NHS Trust; R (S) v Airedale NHS Trust [2003] EWCA Civ 1036, Times 25 July 2003.
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33. Risk Assessment


34. Mind recommends that guidelines on conducting risk assessments when a person is believed to be
experiencing mental distress must take into account:
— an awareness that behaviour is often misinterpreted as aggressive or threatening, while these
actions may in reality be about a need to exercise the right to express views about care and
treatment;
— the patient or prisoner’s personal preferences on how they feel they would be better able to deal
with their mental health problem;
— awareness of the patient or prisoner’s individual and cultural needs;
— anti-discrimination policies and practice;
— the history of the person’s involvement with mental health services; and
— previous diagnoses and medical records.

35. Guidelines on Control and Restraint


36. Existing guidelines give detailed recommendations for the management of control and restraint, such
as in the Mental Health Act 1983 Code of Practice which states conditions for intervention. There are further
guidelines in the National Institute for Clinical Excellence’s Core Interventions in the Treatment and
Management of Schizophrenia in Primary and Secondary Care.
37. In addition to the measures contained in present guidelines, Mind recommends training should be
mandatory for staV who are likely to be involved in using control and restraint and should include:
— conditions under which control and restraint may be used with specific training based on existing
guidelines;
— examples of how control and restraint measures can go wrong or have been abused;
— procedures to consult the person’s nearest relative or in their absence the person’s advocate where
they have one; and
— all staV who may be involved in control and restraint should receive training in emergency first aid
including CPR which is kept up-to-date.

38. Use of Medication for Control and Restraint Purposes


39. The British National Formulary, National Institute for Clinical Excellence guideline on
schizophrenia and the Mental Health Act 1983 Code of Practice together provide a framework for
preventing the over-medication of patients. However, the law does not prescribe limits and it is clear that
guidance is not enough.
40. There is evidence that:
— polypharmacy (prescription of more than one drug from the same BNF class) is routinely used and
BNF levels are regularly exceeded;
— medication is used for the purposes of restraint;
— medication is used as a corrective measure;
— medication is used to compensate for staV shortages; and
— restraint is employed beyond the mandate of the Mental Health Act Code of Practice, that is
other than:
— to save a patient’s life;
— to prevent deterioration;
— to alleviate suVering; and
— being the minimum necessary.
41. At present, limits for prescribing are set out in the British National Formulary, and this is reinforced
by the Mental Health Act Code of Practice, but there is no legal requirement for medical personnel to
prescribe within BNF levels. These levels are generally the doses for which the drugs are licensed to be used,
but clinicians may prescribe outside the licence, albeit taking on greater personal responsibility in doing so.
42. It should also be noted that maximum stated doses in the British National Formulary are often well
above recommended regular dose levels. With some medications, Mind believes, maximum recommended
dose levels have also been shown to be above a therapeutic threshold where an increase in dose does not
produce an additional benefit. Furthermore, adverse eVects are usually dose related so increases in dose do
increase the risk of adverse eVects which may be disabling or life-threatening. There is a clear pattern of
African Caribbean male patients in secure psychiatric settings who have died having been given emergency
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Ev 112 Joint Committee on Human Rights: Evidence

sedative medication which exceed British national Formulary levels or due to polypharmacy. Poor
monitoring of the deaths of detained people perpetuates the problems and mistakes which lead to such
deaths.
43. Mind believes there are several possible measures which may address this situation:
— the Mental Health Act be amended to prohibit giving doses above BNF levels without informed
consent;
— parts of the Code of Practice relating to polypharmacy and maximum BNF levels should be given
full statutory force;
— while doses above BNF levels are allowed without consent under the Mental Health Act, a multi-
disciplinary second opinion process must approve this treatment, including the input of a mental
health pharmacist;
— there should be time limits on high dose therapy with physical checks, and time limits which trigger
a full reassessment of treatment in all cases;
— consistent and detailed record keeping and adequate monitoring is needed especially when
compulsory powers have been used; and
— documentation of whether medication was prescribed for treatment or restraint and
acknowledgement if the “double eVect” was intended.

44. Cultural Issues


45. Black and minority ethnic communities are over-represented in all secure settings, including prisons,
police cells, remand centres, young oVenders institutions, detention centres as well as locked psychiatric
wards. They also tend to have more coercive routes into psychiatric care or custody such under Section 136
of the Mental Health Act 1983.
46. Evidence from Inquest, anecdotal evidence and the actual numbers, though they are said to be too
small to hold any statistical significance, suggest that people from Black and minority ethnic communities
have an increased likelihood of death in custody, whether it be psychiatric, police or prison. In fact, oV the
11 verdicts of unlawful killing or prosecutions following deaths in custody since 1990, nine involved the
death of a person from the black and minority ethnic community and none of these resulted in a successful
prosecution.
47. Several deaths of people from the black and minority ethnic community in psychiatric care or custody
have occurred due to the use of control and restraint. These concerns have been raised on several occasions,
including on the deaths of David Bennett and Roger Sylvester.
48. It should also be borne in mind that being in psychiatric care or custody is a traumatic experience in
itself and the eVects of inappropriate interventions, conditions or treatment cannot be underestimated.
These conditions may relate to diet, cultural values, religion, language (whether this is about use of
terminology or the use of diVerent languages) and family circumstances.
49. Mind recommends that:
— training in specific cultural awareness issues should take place for prison oYcers and medical staV.
This should include:
— an understanding of Trust or prison anti-discrimination policy;
— the history of black and minority ethnic people’s involvement with the psychiatric system and their
overrepresentation in detained settings;
— an understanding of multicultural and acculturation processes; and
— family liaison workers should be trained in notifying bereaved family members and be aware of
culturally specific practices after death.

50. Investigations of Deaths in Custody


51. Mind is particularly concerned about deaths which occur in hospitals, as there is a lack of funding
for legal representation for families at inquests. This is in contrast to the extensive resources routinely made
available within statutory service providers to ensure they have full representation. Without this funding, it
is extremely diYcult for relatives to take part in the legal process and in many cases the only information
they receive is a letter detailing the outcome of proceedings.
52. Guidance issued by the then Lord Chancellor’s department provides that funding should only be
available for exceptional cases where it is strictly necessary for evidentiary purposes. This does not take
account of the needs of the bereaved family who have a legitimate interest in being included as a matter of
course in proceedings. This is an issue under Article 8.
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53. Mind recommends that:


54. Guidance be amended to allow access to legal aid funding for relatives to take part in investigations
and inquests following the death of a close family member in the custody of the state.

55. Summary
56, It is important that the inquiry should pay particular attention to mental health issues, due to the high
proportion of people in detained settings—prisons, police custody as well as in-patient psychiatric settings—
who experience mental health problems. Mind’s main recommendations are that:
57. Adequate care and support should be available for people experiencing mental distress. Many aspects
of the prison system such as isolation from families, overcrowding, relocation can exacerbate the distress
experienced, and so these should be addressed.
58. Prison oYcers should undergo mental health awareness training, and mental health services available
in prisons should be on a par with those available outside prison.
59. Environments where people will be detained should be designed to induce as little anxiety as possible.
Police cells should not be used as a place of safety under the Mental Health Act, and the use of seclusion
needs to be carefully monitored and guidelines adhered to.
60. A preventative approach should be taken towards control and restraint. Where control and restraint
is necessary, staV should have been trained in methods used as they can cause injury and death. Restrictions
should be placed on the use of polypharmacy and high doses of medication.
61. The particular needs of people from black and minority ethnic communities need to be taken into
consideration due to their over-representation in detained settings and the high numbers of deaths of people
from these communities which have occurred.
25 September 2003

18. Memorandum from The Prison Reform Trust

Introduction
1. The Prison Reform Trust (PRT) is an independent charity that works to create a just, eVective and
humane penal system. We inquire into the system, inform prisoners, staV and the wider public and seek to
influence government towards reform. PRT provides the secretariat to the Parliamentary All Party Group
on Penal AVairs. Each year we publish a number of reports on all aspects of prison life that receive
widespread media attention, inform ministers and oYcials and lead to changes in policy and practice. Our
expertise and experience is recognised by HM Chief Inspector of Prisons for England and Wales. About
4,000 prisoners and their families contact our advice and information service each year. We jointly produce
a range of prisoners’ information booklets with the Prison Service.
2. PRT is pleased to respond to the Inquiry’s request for evidence.
3. This submission primarily focuses on the committees’ request for evidence on the issue of preventing
deaths in custody. It will draw from research carried out by PRT and information received from our advice
and information line, from regular meetings with Prison Service oYcials and from visits to prisons.
4. It is crucial to bear in mind that there is no single cause of suicide. Any suicide arises from a
combination of circumstances, and suicide in custody always includes factors inside and outside prison.

What are the Main Causes of Deaths in Custody?

1. Overcrowding
1.1 A recent PRT publication, A Measure of Success: An Analysis of the Prison Service’s performance
against its Key Performance Indicators 2002–03, (Solomon 2003) highlighted the fact that in 2002–03 there
were 105 self-inflicted deaths in prisons in England Wales, the highest ever recorded total for a financial year.
It represented a 40% increase compared to 2001–02 when there were 75 self-inflicted deaths. The report
noted that the rise in suicides had happened at a time when the Prison Service was dealing with a rapidly
rising prison population. During the financial year 2002–03 it rose by nearly 3,000. At the end of March
2003, 94 of the 138 prisons in England and Wales were overcrowded (this means that a prison is holding
more prisoners than its uncrowded capacity, known as its certified normal accommodation level).
1.2 Responding to the report in an interview on the BBC’s Breakfast with Frost programme, the Director
General of the Prison Service, Phil Wheatley, said: “Some of that [the rise in suicides] is because of
overcrowding . . . it’s just the sheer pressure of numbers which means that we’re moving people into a local
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prison from the courts and then moving them out very quickly. Large numbers entering and with staV not
having suYcient time to try to understand the individual needs of individual prisoners. So that’s part of the
problem.”
1.3 The critical factor that Mr Wheatley was highlighting is what is known in the Prison Service as the
“churn”, ie the movement of prisoners around the system. Overcrowding results in people being moved
much more frequently. Within prisons a remand prisoner can go to court during the day only to find that
his or her cell has been re-assigned during the day. The Lord Chief Justice, Lord Woolf, has said that
overcrowding is so severe that some prisoners no longer attend their appeals because they fear that by the
time they return to prison their cells will be allocated to another prisoner (The Times June 2003).
1.4 A study by PRT and the National Advisory Council of the Independent Monitoring Boards (the
watchdogs appointed by the Home Secretary to monitor prison conditions) entitled Prison Overcrowding:
The Inside Story found that many prisoners are being moved around the country at short notice (Levenson
2003). The IMB at Holloway noted: “The practice here is to ship out, even at very short notice, however
many prisoners are needed to free up accommodation for the daily intake.”
1.5 The Prison Service’s Safer Custody group has acknowledged a clear link between the rise in suicides
and the high level of movement through the prison system. Its research has shown that 10 of the 20
establishments with the highest incidence of self-inflicted deaths are also in the top 20 for turnover of
population (Safer Custody Group August 2003).
1.6 Overcrowding can also result in prisoners being regularly relocated within a prison, especially when
so many prisoners in local jails are being moved to and from court on a daily basis. A Prison Service study of
suicides among women found that repetitive cell moves was a common factor (Mackenzie, Oram et al 2003).
1.7 PRT believes that reducing prison numbers would have a direct impact on the number of prisoners
who commit suicide.

2. Mental health
2.1 Many prisoners have significant mental health problems. Research by the OYce for National
Statistics has found that 40% of male and 63% of female sentenced prisoners show symptoms of at least one
neurotic disorder, such as depression, anxiety and phobias. Nearly two thirds of male sentenced prisoners
and half of female prisoners suVer from a personality disorder. These levels of mental illness are three times
higher than among the general population (Singleton, Meltzer et al 1998).
2.2 A high proportion of prisoners have been treated in psychiatric hospitals—According to the ONS
study one in five male sentenced prisoners and 15% of female prisoners have previously been admitted to a
psychiatric hospital.
2.3 Many prisoners have attempted suicide before entering custody. The ONS study reveals that 20% of
men and 40% of women entering custody say they have previously attempted suicide.
2.4 It is important to note that a higher proportion of women prisoners than men enter prison with mental
health problems. A report by PRT, published in July, Troubled Inside: Responding to the Mental Health
Needs of Women in Prison stated: “Given the stresses of concerns about families, their housing and finances,
and the risk of victimisation inside, it is not surprising that the mental health of many women deteriorates
while in prison” (Rickford 2003).
2.5 The Troubled Inside report notes that a qualitative analysis of 30 Senior Investigation OYcer Reports
carried out by the Prison Service in 2002 found that problems in mental health provision played a part in
about eight of the 30 prisoner deaths. The identified diYculties related primarily to health care
accommodation, staYng levels, skill levels and access to specialists. Health Care staV often faced serious
shortfalls in the resources they had available to treat very challenging and complex problems.
2.6 PRT believes that there is a clear link between the high prevalence of mental illness among prisoners
and the level of suicides. Mental health problems directly contribute to the risk of suicide. Many prisoners
who have suicidal thoughts and those who go on to succeed in taking their own lives will have suVered from
a mental disorder.

3. Drugs, social exclusion and family ties


3.1 It is important to note that there are the factors in prisoners’ lives prior to imprisonment that increase
that person’s risk of suicide. These include drug dependency, social exclusion and weak family ties.
3.2 Drug dependency is common among many prisoners. Over half of all prisoners say they have a serious
drug problem. Around two-thirds use illegal drugs in the year before imprisonment—at least double the level
among the general population (Prison Reform Trust Briefing, July 2003).
3.3 Drug use in prison is extensive and rising. All prisoners are subject to random mandatory drug tests.
The results reveal that recorded drug use increased for the first time in 2002–03 for five years. Positive tests
rose marginally from 11.6% to 11.7%. PRT continues to be provided with anecdotal evidence that drugs are
available in most prisons.
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3.4 When prisoners first enter custody many will go through a period of detoxification. In 2001–02 there
were nearly 48,000 entrants to detoxification programmes for alcohol and drug misuse. But concerns have
been raised by HM Inspectorate of Prisons about the uneven distribution and variable quality of
detoxification programmes, especially for prisoners who have been dependent on crack cocaine.
3.5 Providing good quality detoxification is critically important given the fact that one in 10 suicides
occur within 24 hours of admission to prison and almost a third occur within the first week.
3.6 Many prisoners have experienced a lifetime of social exclusion. This has been clearly documented by
the Government’s Social Exclusion Unit in its report, Reducing re-oVending by ex-prisoners. It found that
compared to the general population prisoners are 13 times more likely to have been in care as a child, 13
times more likely to have been unemployed and 10 times as likely to have been a regular truant (Social
Exclusion Unit July 2002).
3.7 Six out of 10 men in prison and two thirds of women have dependent children. Family relationships
can be complicated and diYcult. But when entering custody maintaining family ties and links with the
outside world becomes very important for prisoners. This is not easy for significant numbers of prisoners
who are held a long way from their homes. At the end of February 2003, 27,000 prisoners were held over
50 miles from their committal court town and 12,500 were held over 100 miles away. Research by PRT has
found that the number of visits has fallen by a third in the past five years, despite a more than 20% rise in
the prison population (Prison Reform Trust 2001).
3.8 Although drug abuse, social exclusion and fractured family ties are not the main causes of deaths in
custody they are significant factors that are often prevalent in the personal histories of those who take their
own lives.

4. StaYng
4.1 Overcrowding puts staV under enormous pressures. This means that they have less time to familiarise
themselves with prisoners and therefore less chance of identifying prisoners at risk of suicide or self-harm.
4.2 StaV sickness is at record levels. In 2002–03 the average level of staV sickness was 14.7 days, well above
the target of nine days. The Prison Service has not managed to meet its target on staV sickness since it was
introduced since 1999 (Solomon 2003). At the end of March a third of all prisons had vacancies for at least
5% of prisoner oYcer posts (House of Commons, Written Answers, 20 March 2003). According to the
Prison OYcers Association sickness levels among prison oYcers are the highest in the public sector.
4.3 High levels of staV sickness mean that oYcers have to cover the duties of their colleagues on wings
where they do not know any of the prisoners and where they need to learn the routine at short notice. In
these circumstances prisoners who are at risk of taking their own lives are not always identified and
monitored properly.
4.4 StaV shortages also mean that prisons struggle to maintain personal oYcer schemes that are designed
to provide prisoners with a designated member of staV to support them and work through a sentence plan.
This means that prisoners do not get the support intended for them or the structure provided by a
sentence plan.
4.5 StaV shortages have been exacerbated in recent years by a deliberate policy pursued by the Prison
Service to reduce the number of staV who are active on a wing at any one time. The so-called performance
improvement process requires prison management to cut costs, and the primary target for savings is in the
reduction of staV numbers.
4.6 The Prison Service is also experiencing staYng problems at senior management levels. Research by
the Prison Reform Trust has found that in the last five years a third of all prisons have had four or more
governors, or acting governors in charge. This level of unstable and inconsistent leadership means that staV
training in suicide prevention skills and procedures to monitor prisoners at risk of suicide can be neglected.

What Practical Steps Have Already Been Taken to Prevent Suicides and Self-harm in Prison?

1. The Prison Service’s Safer Custody Strategy


1.1 The Safer Custody Group was established in April 2001 to deliver a new Safer Custody Strategy. The
Group has a broader agenda than the Suicide Awareness Support Group which it replaced. One of its main
tasks is to develop a revised suicide and self-harm prevention policy and to communicate and work with
other agencies. A Research and Training Group, amongst other things, analyses deaths to ensure that
lessons are learnt. A Safer Prisons Group develops safer environment design standards, a local prisons
programme and use of technology to help suicide prevention.
1.2 The Safer Custody Strategy is in the process of being refined. However, its general direction is:
— to move from awareness to prevention;
— to invest more resources where the risks are highest;
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— to provide a better physical environment for prisoners (particularly when first received into
custody);
— to provide more training in mental health and suicide prevention for front line staV in particular;
— to develop better interventions for the management of repetitive self injury;
— to increase numbers of prisoner Listeners in high risk prisons;
— to develop better links with other agencies in the criminal justice system.
1.3 The Safer Custody Group is advocating a pro-active approach, focusing on specific areas of prison
practice (rather than on targeting individual prisoners) to improve the services provided. For example, in
the context of the known risks associated with drug dependence and mental health, one of the proposals for
Safer Local Prisons project is clinical management of substance misuse in a dedicated unit.
1.4 A new Prison Service Order, 2700, on Suicide and Self-harm Prevention, was published in November
2002. PSO 2700 replaces previous guidance with mandatory requirements. The new PSO is to be welcomed
and should provide for safer, healthier and more decent prisons provided increased prison numbers do not
undermine the best eVorts of prison staV.

2. Samaritans Listener Scheme


2.1 The Samaritans operate a prisoner peer supporter scheme in prisons, known as Listeners. These are
people selected, trained and supported by Samaritans to oVer confidential support to their fellow prisoners
who may be at risk of suicide, otherwise in crisis, or simply in need of someone to talk to. The scheme’s
objectives are to assist in preventing suicide, reducing self-harm and to help alleviate the feelings of those
in distress.
2.2 The scheme is extremely positive and PRT fully supports the work carried out by Listeners. They play
an important role in many prisons and the scheme provides prisoners with an important opportunity to
support and assist each other.
2.3 A pilot project is currently underway to extend the ideas behind the Listener scheme to provide
prisoners with the opportunity to befriend vulnerable prisoners when they first arrive at a jail and assist with
induction and settling into the prison regime. PRT welcomes this development as a positive example of how
prisoners can play an active role through volunteering that raises their self-esteem and provides significant
benefits to other prisoners.

3. The transferal of Prison Service healthcare to the Department of Health


3.1 At the beginning of April financial responsibility for healthcare in prisons transferred over to the
Department of Health (DoH). This is the first phase in a gradual transfer of health provision to Primary
Care Trusts. It is hoped that this will raise the standard of healthcare in prison and so contribute to
improving approaches suicide prevention.
3.2 A commitment has been made to increase the number of mental health in reach teams working in
prisons. As of March 2003 there were 42 teams comprising over 155 staV working with prisoners.

What Further Steps Need to be Taken to Prevent Suicide and Self-harm in Prison
1. A reduction in the numbers being held in prisons in England and Wales is imperative in order to
prevent a further rise in self-inflicted deaths. Prisoners would not be moved around the system so often and
would be able to settle more quickly. They would also be able to maintain better links with family and
friends.
2. If prisons were not overcrowded staV would be under less pressure and would be in a better position
to assist prisoners at risk of self-harm or suicide. Interventions could also be based on care rather than simply
on observation. At present staV are not in a position to provide one to one support to prisoners. The Prision
Service needs to move from a culture based on observation and risk-management to one based on care as
this could be far more eVective in preventing suicides and self-harm.
3. The Prison Service needs to stabilise management and staYng throughout the Service so that there is
not a high turn over of staV and there is a reduction in the level of staV shortages.
4. Court diversion schemes need to be available across the country so that oVenders who are acutely ill
or at risk of suicide can be given hospital places or treatment they need. Unless these schemes operate
eVectively there will be little hope of reducing the high numbers of mentally ill prisoners who self-harm or
commit suicide. It is estimated that there are likely to be up to 500 patients in prison health care centres
suYciently ill to require admission to the NHS (Reed 2003).
5. The suicide rate among remand prisoners is particularly high. Last year 36 prisoners awaiting trial took
their own lives which accounted for more than a third of all prison suicides. There needs to be an
improvement in the conditions of, and treatment for, remand prisoners and a reduction in the needless use
of custodial remand.
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Investigation of Deaths in Custody


1. With the implementation of the Human Rights Act 2000, the Prison Service has faced an increasing
number of calls for independent investigations into deaths in custody in accordance with Article 2 of the
European Convention on Human Rights. Article 2 not only protects the right to life but also requires an
“independent investigation” into the death of any person in the care of the state. At present the Prison
Service conducts its own internal investigations into suicides.
2. A recent Appeal Court judgment confirms that the current systems in place for investigating a death
in custody are suYcient, if properly followed, to satisfy the requirements of Article 2 (Safer Custody
Group, 2002).
3. However there are two key areas where the Prison Service may be deficient in respect of the
requirements of Article 2: firstly, the quality of the reports, which should be detailed, thorough, and if
necessary critical of the establishment and secondly, the need for greater involvement of the next of kin in
the investigation. Legitimate family concerns need to be addressed.
4. The Prison Service recently announced that the Prisons and Probation Ombudsman would carry out
an investigation into a suicide at Styal women’s prisoner in Cheshire where six prisoners have taken their
own lives in the last 12 months. The Prison Reform Trust welcomes this development and believes that the
ombudsman or another independent authority should carry out investigations in to all suicides in Prison
Service custody. A Prison Service review is currently examining extending the remit of the Prisons and
Probation ombudsman to investigate all deaths in custody.
16 September 2003

19. Memorandum from Mr Tony Ashley


I write with regard to the “call for evidence” in respect of an Inquiry into Human Rights and Deaths in
custody. I am the brother of James Ashley who was killed by armed Sussex police on 15 January 1998.
I believe that the United Kingdom should be doing more to meet its obligations under Article 2 of the
European convention on human rights especially when the law fails to provide adequate safeguards against
wrongdoing by the Police or other public servants by its reliance on outdated and archaic statutes such as
“misfeasance”.
In our case five oYcers were originally charged with criminal charges—one was charged with Murder/
Manslaughter and four others with “misfeasance in public oYce”. The trial took over three years to get to
court, all the while we were warned not to comment as it could prejudice proceedings, yet Sussex police were
allowed to blacken my brothers’ character despite not having found a shred of evidence which pointed to
James having committed any oVence to justify the armed raid on his flat in the first place.
A coroner’s inquest was put into abeyance whilst criminal charges were pending. Prior to the trial we
attended a committal at Bow Street before a magistrate during which we endured two weeks of legal
argument put forward by numerous Barristers for the defence—extensively funded by the Police Federation.
When the case finally reached the Old Bailey we had to endure further seemingly endless legal arguments
by the defence before we had even heard any evidence.
My primary objection is that the trial Judge—the inappropriately named Justice RaVerty—split the trial
in two between a Murder trial—and a second trial centering on the misfeasance aspect. Somewhat
conveniently once the trials were split the Judge placed a ban on the press from reporting the trial evidence
under the argument that publicity could adversely aVect the second trial. I believe this legal manoeuvre
obstructed real justice and did not allow for any genuine public scrutiny of the serious misbehaviour
undertaken by the oYcers involved.
The next thing we knew, the judge threw out the case before the defendant in the Murder case—PC
Sherwood had even provided testimony, thus robbing us of any chance to hear an explanation of the events
from those principally involved and therefore any sense of emotional closure. The fact that a jury were
prevented from deliberating on the evidence by the cynical actions of the judge exacerbated the growing
sense of injustice. The second trial also collapsed because the Judge decided to rule that there had been
“Corporate Failure” on behalf of Sussex Police rather than wilful misconduct by individuals. As far as we
were concerned this was a completely unsatisfactory outcome and a mockery of justice.
I believe that the failure of both the criminal cases to actually determine responsibility, other than by
vague notions of “corporate failure”, led to the eventual watering down of disciplinary action taken by
Sussex Police against those involved. What also then materialised was the farcical situation whereby the
former Chief Constable Paul Whitehouse actually promoted two of the oYcers involved. Similarly the
Deputy Assistant Chief Constable, Mark Jordan, was somehow allowed to retire on the grounds of ill
health. Jordan—who apparently now lectures on human rights—thus avoided disciplinary action. This is
despite promises by the present government to end this disgraceful practice of serving oYcers being allowed
to retire prematurely without censure.
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All avenues of legal redress having dwindled, the family made concerted representations to the Home
Secretary on the basis that a full public inquiry was called for in this case. After deliberation by the Minister
John Denham, we were informed that an inquiry would not be the best way forward for the following
reasons:
(1) Pending disciplinary action would be halted if a public inquiry was granted.
(2) The Coroners Inquest was due to resume.
(3) The Sussex Police Authority would be formally requested to prepare a report on the events of the
killing and how it had responded to its obligations in the aftermath. We were also promised access
to the (Wilding report) written by Kent Police and the (Hoddinott) report into the state of the
Sussex Police force which had been prepared by Hampshire Police.
In reality, disciplinary procedures against the remaining oYcers were gradually downgraded and sidelined
once the initial bad publicity against Sussex had subsided. The Sussex coroner refused to re-open the inquest
stating that it would amount to a re-trial and finally, Sussex Police Authority, who “owned” the Kent and
Hampshire reports refused to release them publicly. Instead, they produced a report supposedly specifically
for the family which was little more than a rehash of what the Judge had said at the aborted trials.
In summary then, our attempts to gain justice have been thwarted at every turn by the authorities, British
Law fails to provide any modern or contemporary statute to counter wrongdoing by the police. Misfeasance
cannot be deemed appropriate in the circumstances of this case and there certainly needs to be a new and
serious appraisal of the law in this regard. Not only are police oYcers overly protected by judges but civil
proceedings initiated by the victims families are completely out of the question due to the cost—victims
families simply do not have the required funds to challenge legal decisions, the financial strains placed on
victims relatives fighting for justice simply make matters worse, especially when faced with the “money no
object” emphasis of the Police Federation or unsympathetic elements of the criminal justice system.
10 September 2003

20. Memorandum from Dr Leonie Howe


Summary
The report is an extract of a study that investigated and analysed institutional deaths in police and prison
custody and the ethnic dimensions of the issues raised. The main empirical work is focused on responses to
deaths in custody within the UK and Australia. The comparative study, conducted in Australia, was
relevant to highlight particular strengths and weaknesses of our domestic institutions and in suggesting
alternatives.
The study began from the hypothesis that, because of the wider political and social significance attached
to minority ethnic deaths in custody, the normal institutional mechanisms for investigating them, both in
terms of initial fact-finding and subsequent adjudication, may prove or be perceived as inadequate in
resolving disputes and grievances arising from such events. This may lead to victim’s families and their
supporters seeking alternative means of raising their concerns and resolving their grievances. These include
political campaigning techniques, private prosecutions, civil actions for damages, and “peoples’ tribunals”.
The study examines the factors, including legal and other limitations and forms of social exclusion, which
may influence the choice of these mechanisms and their eVectiveness in particular cases.
The research involved a combination of traditional documentary and literature analysis, particularly in
relation to mapping the legal and regulatory contexts in which diVerent institutions and mechanisms for
responding to deaths in custody operate, and empirical investigations based on detailed case studies. In the
UK, both historical and contemporary cases have been drawn from police and prison custodial settings and
involving members of diVerent ethnic minority groups. The rationale for this comparative element is that
oYcial institutions for investigating deaths in custody in both Australia and the United Kingdom have come
under increased political pressure from minority ethnic groups and that it should therefore be valuable to
compare how these institutions have adapted in each country. In particular, the Royal Commission in
Australia (1991) represented a unique institutional response to Aboriginal deaths in custody. This project
is relevant to the ongoing Inquiry in asking whether the UK needs its own Royal Commission to satisfy the
requirements of Article 2 ECHR for an eVective, prompt and independent investigation of deaths in
custody.

The Investigation and Prosecution of Deaths in Custody


1. The inadequacies of initial investigations and inquests have led families and others campaigning over
deaths in custody increasingly to seek out and use alternative remedies. Some of these alternative remedies,
such as the institution of criminal proceedings against the police or prison authorities, have proved to be
ineVective. Others, such as civil legal actions for damages, can result in the payment of compensation to
relatives of the deceased but may have limited value in otherwise holding the authorities to account. Judicial
review is a means for challenging the procedural defects of inquests and other legal remedies and raising
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wider issues of concern in the public arena. More recently, the European Convention on Human Rights and
the Human Rights Act 1998 have been used to challenge more fundamentally the existing systems for redress
when deaths in custody occur.

Criminal Prosecutions Against Police/Prison Officers


1.1 The purpose of the inquest is to find out who died and how. This is incompatible with family’s need
to see those culpable punished. Usually the case is examined and the decision made as to the viability of a
criminal prosecution by the CPS prior to the opening of an inquest. Once the inquest has been opened and
a person has been charged with an oVence under s16(1) (a) of the Coroners Act, normally the inquest will
be adjourned until the criminal proceedings are concluded. With the approval of the CPS, the hearing can
proceed prior to the conclusion of the inquest (Dorries:1999). The coroner may also refer a case to the CPS
if they determine a criminal act has been committed or if the jury returns an “unlawful killing” verdict.
Concern about the close relationship between the police and the CPS has grown due to the lack of criminal
prosecutions following deaths in custody. Questions are now being asked if the interests of the police are
more important than those of both the public and justice (Howe:2000).

The decision making process of the CPS


1.2 The CPS are bound by the Code for Crown Prosecutors which was issued under s.10 of the
Prosecution of OVenders Act 1985. This code states that: There are two stages in the decision to prosecute.
The first stage is the evidential test. If the case does not pass the evidential test, it must not go ahead, no
matter how important or serious it may be. If the case does pass the evidential test, Crown Prosecutors must
decide if a prosecution is needed in the public interest. The second stage is the public interest test. The Crown
Prosecution Service will only start or continue a prosecution when the case has passed both tests.
1.3 Following the public outcry at the deaths in custody of Joy Gardner (1993), Shiji Lapite (1994),
Wayne Douglas (1995) and Brian Douglas (1995), an Explanatory Memorandum to the Code for Crown
Prosecutors issued in June 1996 added “If the evidential test is not satisfied, there must not be a prosecution,
no matter how great the public interest may seem in having the matter aired in court”. Under the revised
Code (6.4(d) and (h)), public interest factors that would justify a prosecution include the defendant being
in the position of authority or trust.
1.4 It is arguable that, at least in the public’s mind, an unlawful killing verdict at an inquest should be
followed by a criminal prosecution. Before reaching a particular verdict, the coroner and the jury need to
be satisfied on the necessary facts to the required standard of proof. For a verdict of suicide or unlawful
killing the standard of proof is at the same level set in a criminal court—“beyond reasonable doubt”. For
all other verdicts, the lesser civil standard of proof applies—“on the balance of probabilities” (Dorries:
1999:193). The question is, however, why given that the standard of proof for a verdict of “unlawful killing”
during an inquest, and the standard of proof for a criminal prosecution are similar, that one does not follow
the other? There can be several reasons for this inconsistency including not meeting the evidential test;
evidence admissible at the inquest may not be admissible in a criminal trial; the deceased took their own life;
or it is unclear which of several people might have caused the death (Dorries: 1999). This is little consolation
to the family who are aware that the deceased was unlawfully killed but the law is unable to punish those
responsible.
1.5 Another unoYcial obstacle to such prosecutions is that it may be felt by the CPS that juries are less
likely to convict police oYcers. There is no available evidence to support this view and the CPS denies it. In
addition to the failure to prosecute oYcers involved in deaths, there is the perception that the criminal justice
system discriminates against ethnic minorities.

Case: Alton Manning


Alton Manning was 33 when he collapsed and died on 8 December 1995 at Blakenhurst Prison while on
remand. Alton’s family was informed a post-mortem had already been carried out, with inconclusive results.
The family believe this was deliberate and wanted to know why cuts and bruises were found on his body.
A second post-mortem found that Alton died of asphyxia.
The inquest into his death began in January 1998. This is the first death in a private prison resulting from
the use of control and restraint procedures. The inquest jury recorded a unanimous verdict of unlawful
killing on 25 March 1998. After the verdict seven prison guards were suspended, on full pay, until a decision
on whether to prosecute was made by the CPS. The case was referred back to the CPS during the inquest,
an unusual step taken by the coroner, but in February 1999 the CPS refused to instigate criminal proceedings
due to “insuYcient evidence”. The decision of the DPP not to prosecute again in May 2000 led to the family
seeking redress through judicial review. Although the case was once again referred back to the CPS, in
January 2002 they announced that charges would not be brought due to “insuYcient evidence” once
again200.

200 The Guardian 26 March 1998; INQUEST press release 26/1/98.


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The Police Action Lawyers Group have referred to “an apparent lack of willingness on the part of the
Crown Prosecution Service and the DPP to prosecute police oYcers against whom there is substantial
evidence to justify a criminal charge” (HAC:1998:90). This claim has recently been justified by the findings
of the Butler Inquiry (1999) into the deaths in police custody of Shiji Lapite and Richard O’Brien, where
the initial decisions made by the DPP not to prosecute the oYcers concerned were made in an “unsound”
system (Hopkins:1999:7). The Inquiry was critical of the process of CPS decision making in these cases,
finding it involved unnecessary replication of functions with no one person taking responsibility for final
decisions.
The Inquiry recommended that all cases of death in police or prison custody be dealt with by the CPS
Central Casework department, that the decision maker in each case be clearly identified, that the decision
maker would be at an appropriate level and that decisions not to prosecute should be reconsidered after the
inquest (CPS: 1999). Although these current shortcomings were identified and recommendations were made,
it is too early to see any improvements. On an individual case basis, the Inquiry stated claims of bias in the
Lapite and O’Brien cases were unfounded and the cases had been dealt with properly.
R v DPP ex parte Manning became the first opportunity to scrutinize DPP/CPS decision-making
following the Butler Report and the Report of the European Committee for the Prevention of Torture in
2000 (CPT). In Manning, the High Court found the DPP’s decision not to prosecute any prison oYcer
“unsustainable in law” after the inquest verdict recorded a unanimous unlawful killing verdict in March
1998, illustrating that despite the recommendations, structural problems of the CPS prosecuting these
cases remains.

Private Prosecution
1.6 Anyone can bring a prosecution under s6 Prosecution of OVences Act 1985. The right to bring a
private prosecution against a police oYcer is not restricted by this Act. A private prosecution is another way
to punish a wrongdoer. The choice of the charge that is preferred is generally in the discretion of the private
prosecutor and not the magistrate. A private prosecution is an also option if a wider purpose such as
exposing the failure of the police to investigate an incident, the failure of the DPP to bring a prosecution,
to prevent the police committing contempt of court, to challenge a prosecutor’s interpretation of the law201
or to expose a pattern of malpractice is being sought. One of the largest obstacles is the expense; no legal
aid is available for bringing a private prosecution202, there may also be diYculties in obtaining enough
evidence to meet the criminal standard of proof (Harrison & Cragg: 1995).

Judicial Review
2. The process whereby the High Court supervises the lawfulness of the actions and decisions of an
inferior court, tribunal, public bodies and individuals who carry out public duties is known as judicial
review. This includes those employed by the Police and Prison Services and decisions made by the PCA,
coroners, and DPP/CPS.

Judicial Review of Inquests


2.1 With respect to inquests, there are two kinds of judicial review in the High Court. Firstly, there is the
statutory procedure under section 13 of the Coroners Act 1988203. The application of the power to quash
depends on whether the court deems it is “necessary or desirable in the interests of justice” to call a new
inquest204. Secondly, an option exists for dissatisfied individuals to apply for judicial review. 205 An error of
law within the coroner’s jurisdiction can be reviewed206, meaning that a coroner’s verdict can be quashed
(Matthew & Foreman: 1994). However, the reviewing court does not quash the decision just because the
court might have decided it diVerently. It is the question of error in the decision making with which the court
is concerned. If no clear error can be found, but the decision is unsatisfactory, the applicant must proceed
under the statutory power to quash, and not by way of judicial review (Matthew & Foreman: 1994). Where
the court considers that an error is found, the first remedy is an order quashing the inquisition, with a further
order to hold a new inquest. But the court may grant relief that falls short of quashing the whole inquisition,
and ordering a new inquest—the only remedy under section 13 of the Coroners Act 1988207.

201 R v Lemon [1979] AC 617.


202 In a successful prosecution the award for costs may not cover the full cost of the prosecution and collection of evidence.
203 Section 13 of the 1988 Coroners Act, re-enacting section 6 of Coroners Act 1887 (as extended by section 19 of the Coroners

(Amendment) Act 1926).


204 R v Divine, ex parte Walton [1930] 2 KB 29, 379, applied in R v South London Coroner, ex parte Thompson, The Times, 9 July

1982, DC.
205 Since 1977, Rules of the Supreme Court (RSC) Ord 53.
206 Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL, concerned a statutory tribunal, not a Coroner’s court,

but is applicable since R v Surrey Coroner, ex parte Campbell [1982] QB661.


207 For example inaccuracies in the coronial may be amended, or deleted a paragraph.
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2.2 Where the inquisition is quashed under statutory powers resulting from judicial review, a new inquest
is usually ordered under section 13(1) (a) of the Coroners Act 1988, as in the cases of Keita Craig and John
Sambells (Vogt & Wadham: 2003). In the case Keita Craig who died on 1 February 2000 in Wandsworth
Prison, the coroner refused to allow the jury to consider a verdict incorporating neglect, even though his
recommendations reflected concerns about the care Keita received. This initial inquest was held during April
2000. Keita was a 22 year-old black male who died within 24 hours of arriving in the prison. On 13 February
2001 the High Court quashed the verdict and ordered a new inquest with a fresh jury, held on 3 October
2001. This inquest recorded a verdict of “killed himself while the balance of his mind was disturbed” and
added a rider that neglect played a part in his death208. John Sambells died on 29 January 1998. The first
inquest was held from 25–27 November 1998. The belated disclosure of video evidence to the family led to
the judicial review and the quashing of the original inquisition. Thus, in the Craig case, his family benefited
by the fact that all the verdicts were open to the jury and in the Sambell’s case, more evidence was disclosed
to the family. In this sense, judicial review forms a system of checks and balances on inquests, necessary
because of the discretion aVorded to coroners.

Judicial Review of Decisions on Prosecution


2.3 Cases where an “unlawful killing” inquest verdict did not result in criminal prosecution have been
Alton Manning, Richard O’Brien, Shiji Lapite, and Derek Treadaway. In Lapite the coroner referred the
case to the DPP to consider the verdict of manslaughter against the two oYcers involved in the death. The
CPS decided not to prosecute. Similarly, in the case of Treadaway, despite a verdict of “unlawful killing”, no
prosecution by the CPS followed. This apparent disparity between the inquest verdict and the CPS decision-
making led the family members of Richard O’Brien, Shiji Lapite and Derek Treadaway to bring a joint
application for judicial review, which came before the Divisional Court on 22 July 1997. This resulted in all
three cases being sent back to the CPS for further consideration and to the setting up of the Butler Inquiry
(1999). In O’Brien, three oYcers were charged with manslaughter but were acquitted on 29 July 1999, five
years after he died.
2.4 In theory, decisions not to prosecute can be judicially reviewed on the basis that they were made in
breach of the CPS Code or are so perverse that no reasonable prosecutor could have made them209. Yet
practice has shown considerable obstacles to exist when challenging a decision by the CPS not to prosecute.
As can be seen from the outcome of R v DPP, ex P Manning and Another [2002] 3 WLR 463 even the High
Court decision that quashed the decision not to prosecute did not result in a prosecution. The High Court
is most useful in cases where there has been a procedural flaw, such as when the failure to prosecute was
unreasonable or where cogent reasons were not given. It does not function as a court of appeal. Judicial
review cannot overcome obstacles such as lack of evidence or diYculties in meeting the standard of proof
in criminal cases.
2.5 The reasons behind lack of evidence and the inability to meet the standard of proof may include the
families are prevented from gathering the necessary evidence or proof needed. The latter would involve flaws
during the investigation, and the inadmissibility of evidence or witnesses called during the inquest—inquests
may use hearsay evidence, whereas the criminal trial cannot—or the diVerent composition of the jury.
2.6 Even where a review is instituted this is not a guarantee that the CPS will subsequently make a
diVerent decision, as seen in Manning discussed earlier in this chapter. Despite the obvious limitations of a
judicial review, the actual process can be helpful in that it frequently exposes more details as the CPS has
to justify its decision in writing and in court, leading to further disclosure.

ECHR and Other International Remedies


3. The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is an
international treaty that provides basic guarantees of a number of fundamental human rights. These rights
are not a traditional construct of English law, but the Convention allows individuals and states to complain
about violations. Prior to the Human Rights Act 1998 (see below), it could also be used in English courts
to help construe statutes210. Neither the Convention nor any secondary legislation made under it directly
accords individuals any fundamental rights, but some Articles are applicable to deaths in custody cases.
3.1 Under the rules of Article 25, any “person, non-governmental organisation or group of individuals”
can bring complaints. The complainant does not have to be European and age is also irrelevant. They must
be within the jurisdiction of a state that has ratified the Convention and the person, organisation or group
of individuals must themselves be the victims of a violation, either directly or indirectly. Thus the family of
a person who died during the course of a violent arrest would be indirect victims of a violation.
3.2 Under Article 26, the Commission considers complaints about violations when all eVective domestic
remedies are exhausted. However, if it is obvious that there is no possibility of an eVective domestic appeal,
then the Commission can deem all domestic remedies exhausted. Thus compensatory damages paid to a

208 Hptt://inquest.gn.apc.org/caseupdater.html
209 R v DPP, ex p C [1995] 1 Cr App R 136.
210 R v Sec State Home Dept ex p Brind and Others [1991] 1 AC 696.
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prisoner held for an excess amount of time on remand may be held to be inadequate211 but damages for
physical abuse are generally seen as adequate, unless the violation is a practice that was oYcially approved
of by the prison administration212. Judicial review does not constitute eVective remedies if the relief it grants
is insuYcient to meet the violation in all respects213.
3.3 The procedure for making an application is straightforward though not a quick one, as applications
take about five years. Under Article 26 the complaint must be made within six months from the date on
which the final domestic decision was taken. Legal Aid is not available for any part of the case. However,
the Commission can grant its own form of legal aid which can retrospectively cover the cost of preparing
the original application, as well as any subsequent work in preparing the case and for representation at
any hearing.
3.4 The government has brought in arrangements for a “no win, no fee” contingency for fees in human
rights cases. If an applicant does win, then legal costs can be uplifted by up to 100%214. However, even
successful cases are unlikely to lead to prosecutions or disciplinary actions against police or prison oYcers,
although compensation for a death might be available, as shown in the case study of Christopher Edwards.
Cases in the ECHR rarely involve the disclosure of further information.

Case: Christopher Edwards


Christopher Edwards, who had been tentatively diagnosed as schizophrenic in 1991, was arrested on 27
November 1994 and taken to Colchester police station. He had been approaching young women in the street
and making inappropriate suggestions. He was later remanded in custody in Chelmsford Prison, initially on
his own (Edwards: 2002). On 28 November Richard Linford was placed in the same cell as Christopher
Edwards on D landing. Richard Linford had been arrested for assault. He had a history of violence,
including a previous assault on a cell-mate in prison. He had been admitted to mental hospital in 1988, and
was subsequently diagnosed as schizophrenic. Sometime during that night Christopher was stamped and
kicked to death by Richard Linford. Linford plead guilty to the manslaughter of Christopher Edwards by
reason of diminished responsibility. He is currently at Rampton Special Hospital, suVering from paranoid
schizophrenia. The inquest was closed, following the conviction (Edwards:2002).
In July 1995, a private, non-statutory inquiry was commissioned, reporting on 15 June 1998. It concluded
that Christopher Edwards and Richard Linford should not have been in prison and in practice they should
not have been sharing a cell. It found “a systemic collapse of the protective mechanisms that ought to have
operated” to protect Christopher Edwards. The applicants were advised that there were no civil remedies
available to them in the light of the findings of the inquiry. On 25 November 1998, the CPS maintained their
previous decision that there was insuYcient evidence to proceed with criminal charges.
Christopher’s parents lodged an application with the European Court of Human Rights on 14 December
1998. They alleged that the authorities failed to protect the life of their son. On the 14 March 2002, the
ECHR in the case of Paul and Audrey Edwards v the United Kingdom (no 46477/99) held unanimously that
there had been a violation of Article 2 (right to life) as regards the failure to conduct an eVective
investigation; no separate issue arose under Articles 6 (right to a fair hearing) or 8 (right to respect for private
and family life); and that there had been a violation of Article 13 (right to an eVective remedy).
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants £20,000 pounds
for non-pecuniary damage and £20,000 for legal costs and expenses. However, despite the ruling that they
were entitled to an eVective investigation into Christopher’s death, the request for an independent inquiry
still has not yet been met and the Edwards’ continue to lobby the Government (Edwards:2002).

The Human Rights Act 1998


4. It now appears that the incorporation of the European Convention of Human Rights by the Human
Rights Act (HRA) 1998 may have a fundamental impact on the inquest system (Thomas et al:2002). The
HRA requires coroners to have regard to Articles 2 to 12 and 14 of the ECHR and to read and give eVect
to all (as far as possible) their statutory powers in a manner that is compatible with convention rights215. As
a public authority, the coroner’s decisions will be subject to appeal if they act in a manner that is
incompatible with the convention, except when the wording of a statute necessitates it. 216 The Convention
has more precise requirements than UK domestic law regarding the eVectiveness of inquiries following a
death in custody and as such has already been the source of a fundamental review of inquest law217.

211 DR 56/62.
212 DR 20/184.
213 DR 42/171.
214 Conditional Fee Agreements Order 1995 SI No 1674.
215 Human Rights Act 1998 section 2 and 3.
216 Ibid section 6.
217 See in particular R (Wright and Bennett) v SSHD [2001] EWHC Admin 520; R (Amin) v SSHD [2001]. EWHC Admin 719;

R (Middleton) v HM Coroner for Western Somerset and SSHD, 14 December 2001.


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Range of an EVective Inquiry


4.1 Under the HRA the scope of the inquest is changing as the investigation focuses on the planning and
organisation of the state agency that provided the place of death, as well as those allegedly directly
responsible for the death. 218 Therefore, the interpretation of the “how” in Rule 36 Coroners Rules now
includes individual actions and systemic deficiencies. Now in cases where the circumstances of the death
relate to Article 3, the inquest has to consider those circumstances in so far as they have a contributing link
to the death219. Under Article 8, the coroner may be forced to put the interests of private and family life
first. Although the inquest remains inquisitorial, the burden of proof is now on the state to provide adequate
explanations for injury or deaths in custody220. This results in shift from the original ambit of coronials
(Thomas et al: 2002).
4.2 Thus, to be considered an eVective investigation the focus must be upon those allegedly directly
responsible for the death, and the planning and organisation of the state agency or operation that provided
the context in which the death took place. An eVective inquiry cannot be limited to the cause of death. Where
appropriate, it must also indicate those who were responsible (Jordan v UK, paragraph 107). Hence
Coroners’ Rule 42 forbidding returning a verdict that “appears to determine an issue of criminal liability
on the part of a named person or civil liability” may not meet the state’s duties under Article 2221.
4.3 Although Article 13 is not a right directly expressed in the HRA, it is relevant to the redress provided
by section 8—the provision of just and appropriate remedies (Thomas et al 2002). In Keenan it was found
that the requirement to show pecuniary/dependency loss as the basis for a civil action under the Fatal
Accidents Act 1976 denied the right to an eVective remedy. Later, the ECtHR cited Keenan in Jordan v UK
to show the necessity for the original inquest to provide an adequate inquiry focussed upon causation and
responsibility. While in R v DPP ex p Manning and Melbourne it was held that where an unlawful killing
inquest verdict was given, the expectation is that a criminal prosecution follows. In the absence of a criminal
prosecution, the DPP is required to give reasons in order to show that there are concrete reasons for acting
contrary to the expectation of Article 2222. Prior to the HRA, this was not the case223.

Independence
4.4 When a death occurs in custody, the independence of an investigation is crucial. In Wright and
Bennett at paragraph 60(2) the High Court held that the dependence of the coroner on the prison’s chief
medical oYcer did not amount to a suYciently independent inquiry. R (Nicholls) v HM Coroner for
Liverpool saw the refusal of the coroner to call any other medical witness except the Forensic Medical
Examiner whose conduct was being challenged was held not to be a suYcient inquiry224.
4.5 Although a PCA investigation into alleged police misconduct is not considered an impartial and
independent tribunal225, other ways exist to challenge the independence of the system via challenging the
investigative process. As coroners rely on police oYcers to make the bulk of their inquiries, an interested
party should to be allowed to examine the investigating oYcer about their independence and impartiality
(Thomas et al: 2002).

Legal Aid and Disclosure


4.6 Under the Convention the investigation into a death must allow the family to have eVective access
to the investigatory process226 and in Jordan v UK, the Court held that necessary involvement included the
provision of legal aid to enable adequate representation.
4.7 Under the Convention all state institutions have a duty to disclose material in order to assist “a proper
and eVective examination” of Article 2 issues227. A failure of a Government to comply may “. . . reflect
negatively on the level of compliance by a respondent state . . . but may also give rise to the drawing of an
inference as to the well foundedness of the allegations”228. A relative of the deceased may be able to claim
a violation of Article 3 for mental distress and anguish resulting from the authorities responses to and
treatment of them in relation to their inquiries229. Article 6 protects a person’s “civil rights and obligations”.

218 McCann v UK at paragraphs 200–201 and 212–214, Jordan v UK at paragraph 101–109, R (Amin) v SSHD at paragraphs
27 and 75.
219 Assenov v Bulgaria 28 EHRR 652 paragraph 117; R v (Wright and Bennett) v SSHD.
220 Salman v Turkey, paragraph 100; Cackici v Turkey, paragraph 85; Selmouni v France, paragraph 87.
221 For example in cases such as R (Middleton) v HM Coroner for Western Somerset and SSHD, 14 December [2001] DC where

prisoner has hung himself after staV failed to recognise he was a suicide risk.
222 R v DPP ex p Manning and Melbourne [2000] 3 WLR 463, paragraph 33.
223 R v DPP ex p C [1995] 1 Cr App R 136; R v DPP ex p Treadaway.
224 [2001] EWHC 922.
225 Govell v UK (Application 27237/95); [1999] EHRLR 121 and Khan v UK [2000] 8 BHRC 310.
226 R v DPP ex p Manning and Melbourne [2000] 3 WLR 463; R (Amin) v SSHD [2001] EWHC Admin 719; R on the application

of Wright v Home Secretary [2002] HRLR1.


227 Cackici v Turkey, 31 EHRR 133, paragraph 85; Tanrikulu v Turkey 8 July 1999 (Application 23763/94) paragraph 70.
228 Timurtas v Turkey 33 EHRR 121, paragraph 66.
229 Cakici v Turkey (2001) 31 EHRR 5 paragraph 98.
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However, it does not directly apply to coroner’s courts because the inquest procedure does not involve the
determination of a person’s civil rights and obligations. As such, the stated requirements of an eVective
inquiry provides only the basic standards of justice and fairness.
4.8 Recently the court in R (on the application of Bentley) v HM Coroner for the District of Avon230 noted
that the decision in ex p Peach, is out of step with contemporary practice and cannot be used to prohibit all
advanced disclosure. In a death in custody, a coroner will need to forward convincing reasons for refusing
disclosure (except in relation to statements that he intends to read). The movement away from ex p Peach
was also seen in ex p Leatherhead. Compliance under Articles 2, 3 and 8 means pre-inquest disclosure should
be instituted on a legal basis231.
4.9 Since the first deaths in custody have come to light in the UK, it has been argued that there is a lack
of natural justice and procedural fairness in the inquest system232. The obligation stemming from Article 2
for an investigation into a deprivation of life by agents of the state is relevant233. In Australia, cases
considering the equivalent application of natural justice principles have come to the opposite conclusion.
There, individual police oYcers were seeking pre-inquest disclosure in circumstances where a prisoner’s
treatment was controversial234.

Case: Paul Wright


This case has been included as it shows the limitations to the remedies available even after the Human
Rights Act 1998. Paul, 33, died at Leeds Prison in 1996 from asthma (Liberty: 2001). He was serving three-
and-a-half years for fraud, drugs and driving oVences. At the inquest held on 29 April 1997, the Prison
Service apologised for the death. The inquest verdict was death by natural causes. A civil suit for damages
was settled out of court in November 2000, after the Home OYce admitted liability.
A police inquiry into deception, wilful neglect and manslaughter by Dr Singh, the prison doctor, ended
without charges. An initial plea for an independent inquiry was rejected by the Home Secretary. But in June
2001 an application was made in the High Court (Liberty: 2001) by his mother and aunt alleging that the
Secretary of State for the Home Department was in breach of Article 2 (right to life), Article 3 (inhuman
and degrading treatment) and Article 8 (privacy and family life). The application was upheld and on 27 June
2001 the Home Secretary was ordered to institute an independent public investigation within three months.
This meant that the inquiry took place more than five years after Paul’s death. It was the first public inquiry
into a death in custody ordered by a judge under the HRA 1998.
The guilt of any one person involved was not established as the inquiry only sought the medical facts of
the death. Published on 11 July 2002, the report stated that Paul died from an asthma attack following
months of “substandard” medical treatment at the prison. A key issue at the inquiry was the role of the
prison doctor, Dr Singh. Under the Tribunals and Inquiries Act 1992, inquiries into prison deaths are non-
statutory meaning that anyone giving evidence does so voluntarily. The non-appearance by Dr Singh has left
the Wright family concerned that the Inquiry failed to answer key questions, as they were unable to establish
individual responsibility for the death (Liberty: 2002; Wainwright: 2002).
5. In this report we have seen how the remedies available to families seeking answers or some form of
redress in death in custody cases overlap. This interaction between remedies can have certain advantages,
for example, allowing for progressive (if piecemeal) disclosure of facts about deaths in custody that may
have been withheld at earlier stages. Such disclosure within one forum may in turn assist relatives to pursue
other forms of redress more eVectively. Similarly, the availability of legal aid in some areas, such as for civil
legal actions, may alleviate to some extent the denial of such assistance before inquests. However, these
diVerent remedies often involve families a long and expensive route through the legal system. They will
initially start at the inquest but due to its traditional limited scope often are forced to journey through
criminal prosecutions, private prosecutions, civil actions and finally end up seeking redress under the
Human Rights Act or through the European Courts. It is only the latter that now holds out the potential
for forcing the UK Government to consider more fundamental reform of the whole system of remedies to
deaths in custody.
5.1 The significance of this issue for black and ethnic minority communities does not lie in the
disproportionate number of their members who die in custodial situations alone but rather because deaths
in custody demonstrate wider discrimination felt by these communities in the criminal justice system and
society at large. This research has shown how members of black and ethnic minority communities share
many of the same problems as families, relatives and supporters of other victims of custodial deaths when
it comes to attempting to find redress through existing legal remedies.

230 [2001] EWHC Admin 170.


231 Jordan v UK, paragraph 109.
232 R v HM Coroner for Hammersmith ex p Peach [1980] 2 WLR 497, 504; R v HM Coroner for Lincolnshire ex p Hay [1999] 163

JP 667, 675–6.
233 McCann v UK paragraph 150.
234 Annetts v McCann (1990) 65 ALJR 167.
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5.2 As expected, it was found that the existing remedies for deaths in custody are inadequate and need
to be reformed, and that there is a need to give greater consideration to the ways in which these diVerent
mechanisms interact with one another. This paper started with the proposition that reform directed solely
at the existing remedies is not suYcient to meet the wider political concerns of the black and ethnic minority
communities. This in turn led to the second part of the research question, of what potential role there may
be for a Royal Commission on Deaths in Custody in the UK?

The Politics of Deaths in Custody in Australia and the UK


6. In the UK the oYcial reaction has tended to be one of denial of responsibility and an attempt to blame
individuals for their own deaths, thereby diminishing state accountability. It not untypical for a death in
custody to be immediately followed by stories being leaked to the press concerning the drug taking,
psychotic behaviour, immigration status, super human strength, size, and height of the victims, images
which are often linked at least sub-consciously with their race. This can be seen in the UK as far back as
David Oluwale’s manslaughter case in 1971, where the trial judge called him “a menace to society, a nuisance
to the police and a frightening apparition” (IRR:1991:6). By doing that, the victim can be blamed and when
many months or even years later, the truth does start to emerge, the waters have been so muddied that the
public cannot see the victim beyond their immigration status, criminal record or their drug or mental health
problems.
6.1 In Australia, the setting up of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC)
in 1987 represented a major departure from this individualised response to deaths in custody. Of course, the
Royal Commission was the product of a Labor Government under increased pressure about its public
image, both nationally and internationally. Cynically, one could argue that the Royal Commission was
established precisely in order to deflect this criticism in the build up to the Australian Bicentenary in 1988.
It has been noted that Royal Commissions traditionally have the role of managing potentially conflictual
issues in society within a seeming democratic consensus, rather than being a real stimulus for political and
social change (Thomas: 1982; 1994).
6.2 However, despite some of its harsher critics and more specific failings, the RCIADIC has presented
a somewhat diVerent experience. More than a decade after it reported, its findings and recommendations
are still a talking point among Aboriginal organisations, the media, academics, and the general public.
Moreover, the Commission, by extending its Letters Patent, went beyond the normal expected parameters
of such bodies and, by doing so, raised awareness of issues such as systemic failures and the over-policing
of certain communities (McDonald: 1999). It has, in turn, helped to collectivise the response to deaths in
custody in Australia. Government and Aboriginal organisations have established dozens of bodies
responsible for the monitoring and reporting upon the implementation of the Royal Commission’s
recommendations, such as the various Death Watch Committees, the National Deaths in Custody
Monitoring Unit in Canberra, and MUNNCI (national coronial database) in Melbourne. These have
provided the Australian system with at least some transparency and consistency. The Commission has
furthermore provided a framework for Aboriginal activism in the field of human rights campaigns, criminal
justice campaigns and Aboriginal self-determination (McDonald: 1999).
6.3 By contrast, in the UK there has never been an oYcial recognition of black deaths in custody being
a collective problem of the criminal justice system or society at large. The Home OYce report by the Police
Research Group (Leigh et al 1998) treated deaths in custody as a technicality of the way individual detainees
were treated, without any recognition of the wider concerns raised by campaigning groups and members of
the black community. The language of the report was tentative, and didn’t call for radical change.
6.4 The earlier Home OYce study by Ingram, Johnson and Hayes (1997) again focussed on self-inflicted
deaths in police and prison custody. However, many of the recommendations and findings were not
innovative or new. Most had already been discussed in depth by other UK academics, such as Liebling and
Ward (1994) and Towl (1996; 1999). Thus, suicide and “deliberate self-harm” (DSH) prevention has tended
to dominate oYcial discussion on deaths in custody in the UK.
6.5 The nearest the UK has come to achieving oYcial recognition of a collective responsibility for deaths
in custody has been the MacPherson Report (1999) which arose, of course, out of a diVerent issue altogether.
In similar circumstances to those that led to the establishment of the RCIADIC in Australia, the
MacPherson Inquiry was a political response by a newly-elected Labour Government in the UK to growing
national and international pressure over black victimisation and the failure of the police to investigate
crimes against members of ethnic minority communities eVectively. Like the RCIADIC, the MacPherson
Inquiry extended its remit beyond the specific case of the racist murder of Stephen Lawrence to examine
(albeit much more briefly) wider issues of race and criminal justice. Both reports reached similar conclusions
regarding the existence of “institutional racism”, of how (in the words of the RCIADIC) racist presumptions
are frequently “embodied in ostensibly neutral procedures”235 Although it dealt with it only tangentially,
the MacPherson Report did at least acknowledge deaths in custody and the need for eVective redress as a
major concern of the ethnic minority communities.

235 Wootten, H Report into the Death of Clarence Alec Nean (1991:72).
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Ev 126 Joint Committee on Human Rights: Evidence

6.6 More generally, the issues the Royal Commission uncovered in Australia relating to Aboriginal
deaths in custody were startlingly similar to those in the UK surrounding black deaths in custody. In
Australia and the UK the number of blacks deaths in police and prison custody are disproportionate to their
percentage in the population but not to their proportions of arrestees or the prison population. This points
to another commonality—black over-representation in the criminal justice system (Simes & Goodman:
2002:20, ABS: 2002).
6.7 In both Australia and the UK, governments have traditionally used the over-representation of ethnic
minorities in the criminal justice system as a means of rationalising the high incidence of Aboriginal/black
deaths in custody. This line of rationalisation was reflected, for example, in the 1998 Home OYce study on
deaths in custody in the UK. By contrast, the Royal Commission in Australia not only concluded that
Aboriginal people are more likely to die in custody because they are over-represented in custody236, but went
on from this to link such over-representation to the disadvantaged and unequal position in which Aboriginal
people find themselves in the society—socially, economically and culturally. In the UK, there has never been
such oYcial recognition of the need to reduce the incidence of black arrests and imprisonment as a means
to addressing the issue of black deaths in custody.
6.8 Unfortunately, the political and legislative trend in both Australia and the UK in recent years has
been away from de-criminalisation and the reduction in the use of imprisonment. Rather, there has been a
distinct shift toward a greater emphasis on the use of criminal sanctions and deterrence. These measures
particularly impact on black people because of their greater likelihood of a prior oVending history. Much
the same can be said of the likely adverse impact on black imprisonment of current shifts in criminal justice
and sentencing policy in the UK to target so-called “persistent oVenders” (Bridges 2001: 71).
6.9 Given this common shift toward greater use of imprisonment, it seems highly unlikely that the
incidence of custodial deaths in either Australia or the UK will be significantly reduced. The statistical
evidence from Australia is that any reduction in deaths in police custody are likely to be more than matched
by increases in prison deaths. In this context, the issue of deaths in custody is likely to remain a major focus
of political concern for ethnic minority communities in both countries, as will the eVectiveness of the oYcial
remedies available to them.

Reforming Remedies in Deaths in Custody Cases

Initial Investigations
7. For many years the main criticisms surrounding deaths in custody has been the lack of independence
regarding police and prison investigations. At present in the UK the PCA investigate deaths in police
custody, meaning that the police investigate themselves. The police also conduct an investigation when a
death occurs in prison custody. This investigation often runs parallel to the Prison Service’s own internal
investigation. For a coroner to fully investigate how and why a person died in custody, the initial
investigation is crucial. However, this investigation is currently conducted by the police and the coroner’s
oYcer, a seconded police oYcer. As the coroner relies so heavily on the information received from these
sources, a persistent criticism has been that the Coroners Court itself is not independent as it is dependent
on the police. Similar criticisms lay at the heart of some of RCIADIC’s key recommendations on coronial
investigations into deaths in custody in that country.
7.1 Over recent years, a significant impetus for reform of the system for investigating complaints against
the police has developed. The European Committee for the Prevention of Torture (CPT) has criticised the
lack of “independence and impartiality” of investigations into complaints against the police (CPT:2000:17).
Both the MacPherson Report (1999) and the Butler Inquiry (1999) called into question the legitimacy of the
current investigation system for serious complaints against the police. These criticisms resulted in the Police
Reform Act 2002 and the establishment of the Independent Police Complaints Commission (IPCC), which
is due to come into operation in April 2004. A major question mark remains as to whether the IPCC will
be able to establish a reputation for the independence and robustness of its investigations, especially where
a death in custody occurs. Nor are there any plans as yet to establish a similarly independent body to
investigate deaths in prison or other forms of custody.

Disclosure and Representation


7.2 Two issues which cannot be separated from either the lack of independence of initial investigations
of deaths in custody or the ineVectiveness of inquests are the lack of disclosure to and adequate
representation of families of those who have died. Despite recent pledges towards a more open system, any
internal investigation statements taken from witnesses are the property of the Prison Service as are
documents collected in the course of the PCA investigation. The coroner has no powers to order pre-inquest
disclosure. Thus, in reality, pre-inquest disclosure remains a voluntary act by both the Police and Prison
Service.

236 National Report, Volume 1 at 1.3.3.


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7.3 The need for representation of families of those who have died in custody is not limited to appearances
before inquests. Not only is there a need for such representation to be available early enough to enable
adequate preparation prior to the inquest, but representation for families from the very beginning of
investigations of deaths in custody may be an important element in enhancing the independent status of
those investigations. Family representatives can serve to counter adverse publicity about the victim and to
raise further issues for investigation. In this respect, it is important that some mechanism is established to
identify lawyers who are suYciently expert in dealing with deaths in custody and to put families in touch with
them as soon as a death in custody occurs. Needless to say, such representation should be made available
throughout free of charge and regardless of the means of the families concerned.

Inquests
7.4 The coronial system in the UK has many deficiencies when dealing with a death in custody: the undue
influence of the police over the coronial process, the major delays in holding an inquest, the lack of
independence of coroners and the coronial organizations, the broad and vague powers of coroners, and the
barriers to the eVective participation of relatives. The core issues of accountability, independence, fairness
and eYcacy are identical.
7.5 The current inquest system does not provide an eVective remedy for families as they want to find out
the truth surrounding the death in custody and would like to see those responsible to be held liable.
Furthermore, the coronial process itself is flawed. It is not an open, transparent system as disclosure is not
a right, it is dependent on goodwill, it is not provided early enough and there are many exclusion clauses
preventing full disclosure. Death in custody inquests are formally inquisitorial but adversarial in practice,
with both sides with much to lose, and this serves to confuse the unprepared family participants. Coroners
do not have suYcient powers to be genuinely independent and lack the skills, training, and independent
support necessary to conduct investigations into a death in custody.
7.6 It is essential for public confidence that the strong link between the coroner and the police must be
removed. Every death in police custody should be investigated as a potential homicide by the new IPCC,
which must not be police dominated. As for prison deaths, more independence could be achieved if the
Prison Ombudsman were given the power to investigate and publish their reports into all prison deaths. In
order to assist the grieving families, guidelines should be developed to speed up the inquest process and full
and prompt pre-inquest disclosure made mandatory. It is inconceivable that bereaved families are still
subject to delays of over a year in trying to find out how a loved one has died.
7.7 The jury is too confined in their ability to frame verdicts and they cannot make recommendations and
do not name those responsible. The verdicts do not necessarily lead to any form of legal liability creating a
lack of consistency. The author recommends that the jury power to add riders should be reinstated. A further
reform the researcher advocates is the reinstatement of the coroners’ ability to commit someone for trial237.
At present the inconsistency between “unlawful killing” verdicts and coroners’ inability to name individuals
responsible and commit them to trial is a major deficiency, as the expectation that a criminal prosecution
will follow such a verdict is rarely met.
7.8 This lack of consistency is reinforced as coronial findings and recommendations are not published,
monitored or even followed up. Riders have been abolished. In order to reduce this inconsistency, coroners’
recommendations should be part of the inquest verdict; their recommendations should be published and
monitored. There needs to be some oYcial mechanism for holding the authorities to account for acting upon
coroners’ recommendations, as it is not enough that the media can draw attention to and cause
embarrassment to government agencies if recommendations are ignored and another death follows238. If a
public inquest database were available and easily accessible families would not feel so left out. They would
be aware of the options available to them and how the system actually works. Additionally, if the post of
an inquest welfare oYcer, employed by the coroner, was created to liase and explain the process to families,
this would help to create a more independent and less confrontational system.
7.9 In order to strengthen the role of the coroners’ court and create a more consistent system, a Chair/
Head of Coroners should be created to maintain standards, ensure regular training, provide good practice
guidelines and deal with complaints. The final and perhaps most important recommendation to emerge from
the research into coronials into deaths in custody is that legal representation should be a right for families
without means testing. The importance of such a recommendation cannot be overstated. The undue stress
that families are put through in trying to secure financial assistance at such a traumatic time is unforgivable.
7.10 There are currently attempts afoot to institute reforms of the inquest system. Dame Janet Smith is
investigating the role and function of investigations in the Shipman Inquiry. The Final Report is due in 2004.
The Home OYce launched a Fundamental Review of the Coroner’s System239 in 2001 as a result of the Alder

237 Removed under the Criminal Justice Act 1977.


238 Chief Commissioner of Police v Hallenstein [1996] 2VR 1 at 21.
239 The Coroners Review Team’s terms of reference included: considering the most eVective procedure for identifying the

deceased, for establishing and certifying the medical cause of death, and having regard to proposals for a system of medical
examiners.
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Hey and Marchioness Inquiries. The results were published in June 2003. The report recommended that
public judicial inquiries be held in all death in custody cases where the death did not arise from natural
causes. It does not, however, support coronial verdicts implying either criminal or other liability.
7.11 As yet Ministers are still considering their response to the recommendations made. The HRA 1998
s3 aVects the potential to reform coroners’ courts in a number of ways. In particular, the limited remit of
the coroner’s inquiries may need to undergo significant changes, in order for the “how, where and when the
deceased came by his death” in the Coroners Act 1988 s11(5) (b) to have the potential to provide for an
adequate and eVective inquiry. This is because the word “how” potentially no longer excludes a
consideration of individual actions and systemic failures. Furthermore, the introduction of the HRA means
that coroners are now obliged to put the interests of family and private life in a primary position as directed
by Article 8 of the ECHR (Thomas et al 2002). In general terms the HRA 1998 may enable coroners to
rewrite the Coroners’ Rules, but this would be a prolonged exercise conducted on an individual case basis.

Criminal Prosecutions
7.12 At the moment criminal prosecution remains the most appropriate action for holding individual
people to account for a death, but such actions are doomed to fail without a reform of the whole investigative
process. To date, in both countries there has been no successful criminal prosecutions following a black
death in custody. Since 1990 there have been eight deaths in custody where inquests returned unlawful killing
verdicts in the UK, all of which were followed by CPS decisions not to prosecute. The CPS decisions were
successfully challenged using judicial review in four of these cases (O’Brien, Lapite, Manning and Alder),
two of which eventually resulted in unsuccessful prosecutions (O’Brien and Alder). Although the Butler
Inquiry (1999) was set up to examine the decision-making process of the Director of Public Prosecutions in
relation to deaths in custody, it did not itself result in any new prosecutions or significant changes. Lastly,
the Attorney General and the Director of Public Prosecutions have begun a review of the role of the CPS
in deaths in prison or police custody. It reported in July 2003 and was limited to key aspects of the CPS role
.It did not reopen or reconsider individual cases.

Would a Royal Commission Satisfy Article 2?


8. In 1991 the Institute of Race Relations proposed the establishment of a Royal Commission to
investigate all deaths in custody based on their limited knowledge of the RCIADIC at the time. This paper
set out to investigate the feasibility of this proposal when set against an analysis of what the Australian
Royal Commission achieved and the potential for reform under the Human Rights Act 1998.
8.1 One of the clear lessons to be drawn from the Australian Royal Commission is that such a body is
inappropriate for the detailed investigation of individual death in custody cases. Not only did the RCIADIC
become bogged down in the controversy and procedural manoeuvring that is bound to surround such
investigations, but a permanent body with such a remit could well hamper the reform of existing remedies
and the development of investigative expertise in the police, prisons and secure hospitals—arguably where
greater expertise is most needed. Also, even if the establishment of a standing Commission guaranteed
greater investigative independence, its very existence would limit the progress of creating independence in
other institutions, such as the new IPCC. The Institute of Race Relations originally proposed that a Royal
Commission would only become involved in individual cases in an appellate capacity, following an inquest.
However, the past decade has seen a significant development of judicial review as a means for challenging
the findings of inquests and the inadequate working of existing remedies, such as criminal prosecutions. The
advent of the Human Rights Act 1998 has a potential for further strengthening such challenges in the future.
8.2 What of the wider political impact of the Australian Royal Commission? As argued earlier, it proved
for a period to be a stimulus for both government action and wider political organisation around the issue
of deaths in custody. However, its eVect in terms of influencing governments in Australia has now largely
dissipated with the advent of much harsher “law and order” policies. Arguably, the experience in the UK
following the MacPherson Report holds out similar lessons.
8.3 If the analysis presented here leads to scepticism about the potential for a Royal Commission in the
UK, there may nevertheless be a role for a diVerently constituted permanent review body on deaths in
custody. Such a body would need to include representation of community and other interest groups and it
certainly should not seek to displace them. While there should be a statutory requirement on all custodial
and investigative bodies to notify the review body immediately that deaths (and possibly serious injuries) in
custody occur, its function should not be to oversee or interfere with the existing processes of investigation
of such cases. It might, however, have a role in assisting families in the immediate aftermath of deaths, such
as in maintaining a register of lawyers expert in dealing with deaths in custody cases and putting them in
touch with families through organisations such as INQUEST.
8.4 The primary role of the review body would come after the investigation and inquest into deaths in
custody had been completed. One of the more important and lasting changes brought about by the Royal
Commission in Australia was the setting up of the National Deaths in Custody Monitoring Unit in Canberra
and the MUNNCI (national coronial database) in Melbourne. Part of the function of a national review body
on deaths in custody in the UK would be to replicate the role of these organisations in this country in respect
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Joint Committee on Human Rights: Evidence Ev 129

of death in custody cases, in particular collating information on the findings and recommendations of all
investigations and inquests into deaths in custody. But it should also go beyond such a monitoring role and
seek to draw out specific lessons for future policy in this field. Its advantage over existing remedies is that
its remit and recommendations would not be confined to the circumstances on any one individual death or
even to one particular form of custody, but rather it could seek to draw out policy lessons across the full
range of cases and custodial situations. It could also serve as a body to review periodically the Government
and authorities’ implementation (or lack of it) of recommendations of inquests or the review body itself. One
could envisage the publication of its annual reports as providing a major focus for a wide range of groups
campaigning for reform in relation to deaths in custody.
8.5 Of course, no commission or review body can serve to guarantee reform or as a substitute for political
action around such issues as deaths in custody. The issue of deaths in custody will not disappear due to the
underlying spectre of racism and current trends in criminal justice policies, such as the drive against
“persistent oVenders” in the UK. Unless there is a fundamental shift in societal attitude towards ethnic
minorities and criminal justice issues (including immigration) then despite the attempts at reforming
individual parts of the system, the number of deaths in custody will continue to rise in line with the growing
incarceration of members of ethnic minority communities.
25 September 2003

21. Memorandum from Dr Alice Mills

Preventing Deaths in Custody

1. Main causes of deaths in custody


1.1 Traditionally, suicide in prison has been seen as being caused by individual, internal traits or
characteristics, such as psychological defects and many early studies mentioned the high preponderance of
mental illness/psychiatric contact and substance misuse among those who commit suicide in prison.
However, as prisons tend to “specialise” in people with mental health problems and substance misusers, any
prediction made on the basis of these factors is likely to generate a high number of false positives. In order
to distinguish those at risk from suicide/self-harm from those who are not, it is necessary to look for other
indicators of vulnerability.
1.2 More recently, there has been a shift towards understanding suicide in prison as the result of
diYculties coping with imprisonment and the pressures of prison life. Such coping diYculties will vary
between individuals as they are seen to arise from an interaction between internal factors such as mental
health problems which may aVect a prisoner’s coping abilities, and environmental pressures, particularly
the so-called “pains of imprisonment” such as lack of activity or security or contact with family and friends.
For example, in her study of prison suicide, Liebling (1992)240 found that young inmates who were at risk
of suicide or self-harm were those who were less likely to have contact with anyone on the outside, less likely
to have anything to occupy them during the day and more likely to have problems with other inmates, and
were also unable to cope with the resulting isolation, boredom and fear, as well as having a history of
psychological problems and substance abuse.
1.3 DiYculties coping with prison life may also explain other so-called “maladaptive” responses to
imprisonment. Inmates who find it diYcult to cope in prison may withdraw either physically (by going into
protective segregation) or psychologically, and such withdrawal may lead to further problems as they may
be seen as “weak” by other prisoners, which may leave them open to bullying and victimisation. They may
also be vulnerable to violent outbursts or episodes of “acting out” as a result of their own frustrations with
prison life.

2. Common Factors
2.1 Research is in general agreement that prison suicides tend to share several common factors. Suicide
is more likely to occur in the early stages of a sentence. The Chief Inspector of Prisons (HMCIP 1999)241
reported that the first 24 hours is a high risk period as about 10% of suicides occur in this period, with 43%
occurring within the first month and 80% within the first year. This may be explained by the shock and stress
of incarceration which may be even more acute for first-time prisoners. Substance misusers are at particular
risk at this time, as they have to cope with the shock of imprisonment, whilst withdrawing from the substance
that they have previously been dependent upon.
2.2 Prisoners on remand are also disproportionately represented in the figures. This has largely been
attributed to the stress of the remand period, as prisoners face the uncertainty of the court case and
sentencing as well as the shock of being in prison, poor conditions, limited activities and overcrowding on

240 Liebling, A (1992) Suicides in Prison, London, Routledge.


241 HM Chief Inspector of Prisons (HMCIP) (1999) Suicide is Everyone’s Concern: A Thematic Review by HM Chief Inspector
of Prisons for England and Wales, London, Home OYce.
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Ev 130 Joint Committee on Human Rights: Evidence

remand wings. However, as the remand population has a high turnover, any suicide rate based on the
average daily population may be slightly biased towards remand prisoners, and if calculated on the basis on
receptions, the suicide rates of sentenced and remand prisoners are roughly similar (Liebling 1999)242.

2.3 Prisoners who have committed violent and sexual oVences may be more at risk of suicide and self-
harm. In 1998, 34% of those who committed suicide were charged with violence against the person, but this
group made up only 21% of the prison population. Those charged with sexual oVences made up 10% of
suicide, but 8% of the population (HMCIP 1999).243 Those serving sentences of four years or more,
particularly lifers, are at high risk and this may be due to guilt about the oVence, and uncertainty and despair
about the prospect of long periods of imprisonment.

2.4 Due to the fact that a large proportion of prison suicides are carried out by those on remand or in
the early stage of a sentence, the majority of suicides and incidents of self-harm take place in local prisons,
as these are where such prisoners are accommodated.

3. Particular aspects of conditions of detention, or the treatment of detainees, or the cultural background of
prisoners or prison oYcers that contribute to suicide and self-harm

3.1 Prison pressures or the so-called “pains of imprisonment” such as isolation from family and friends,
and the lack of constructive activity may contribute to suicide and self-harm if prisoners feel that they are
unable to cope with them. For example, the lack of any opportunity to sort out family problems or alleviate
anxieties over a relationship due to the constraints of imprisonment may lead to feelings of hopelessness and
despair, which may eventually lead to suicide. In the current climate of overcrowding, contact with family
may be even harder to maintain if a prisoner is moved far away from their home area due to population
pressures, and visits from family can become diYcult if not impossible. Prisoners who have diYculty coping
with the boredom and inactivity of prison life are more vulnerable to self-destructive acts, and therefore such
risk is likely to be more acute in local prisons which tend to have a high prisoner turnover and high levels
of overcrowding. This may lead to a large proportion of the population being left with no opportunities for
work, education or other activities and being locked in their cells for up to 23 hours a day, as well as less
opportunities to arrange visits or make phone calls, and more pressure on facilities such as health care, drug
treatment etc. Furthermore, staV may have less time to conduct assessments and oVer care to individual
prisoners.

3.2 Feeling unsafe or fearful may also contribute to suicide in prison, particularly if prisoners do not see
any other way out of a situation where they are being bullied, threatened etc. This risk may be higher if they
are in prison for the first time or at the beginning of their imprisonment and have not had any time or
opportunity to build up any kind of supportive network, or learnt the skills to avoid threatening situations.

3.3 The masculinity of a male prison environment and the prisoner subculture may discourage inmates
from discussing their personal diYculties, as showing that they have problems and particularly talking to
staV about them may be seen as a sign of weakness, potentially leaving prisoners more susceptible to
victimisation.

3.4 Despite the fact that a history of self-harm can be a strong indicator of vulnerability to suicide, self-
harm or suicide attempts are sometimes seen by staV and other prisoners as manipulative, attention-seeking,
“gestures” which are deliberately carried out by prisoners for their own gain such as to obtain transfer to a
better setting, escape problems with others or be given a phone call to loved ones. Such attitudes may lead
staV to dismiss the severity of the prisoners’ distress and they may be treated with contempt and disapproval
rather than support and help. Viewing these acts as attention seeking or manipulation tends to ignore the
real problems that motivate prisoners to commit self-destructive acts, and if there is no response to an act
of self-harm, suicide may ensue (Liebling 2001)244.

3.5 StaV shortages, lack of staV continuity and lack of information sharing can all impair staV ability to
identify and care for prisoners at risk of suicide/self-harm. Although personal oYcer schemes (where one
oYcer is responsible for the welfare of a small group of inmates) may facilitate trust and understanding
between inmates and staV, thereby putting them in the best position to notice any problems that prisoners
may be having, the eVectiveness of such schemes varies between establishments, and they are particularly
less likely to be running in local prisons and remand centres, despite the heightened risk of suicide there
(HMCIP 1999)245.

242 Liebling, A (1999) “Prison Suicide and Prisoner Coping”, in Tonry M and Petersilia, J (eds) Prisons, Crime and Justice: A
Review of Research, Vol 26, Chicago, University of Chicago Press.
243 op cit.
244 Liebling A (2001) “Suicides in Prison: Ten Years On”, Prison Service Journal, No 138, pp 35–41.
245 op cit.
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Joint Committee on Human Rights: Evidence Ev 131

4. Particular aspects of conditions of detention, or the treatment of detainees, or the cultural background of
prisoners or prison oYcers that contribute to other deaths or injuries in custody
4.1 The subculture of prisons and the prisoner hierarchy ensures that certain groups of inmates are at a
much higher risk of victimisation and therefore injuries and possibly even deaths in custody. Probably the
most “at risk” group, at the bottom of the hierarchy, is made up of sex oVenders, particularly child molesters
or killers. Many prisoners see the victimisation of sex oVenders as legitimate and such attitudes can be
reinforced by staV who may tolerate expressions of such hostility. Other vulnerable groups include “grasses”
who are seen to have broken a key rule of the inmate subculture, police informers or those in debt to other
prisoners.
4.2 Prisoners who have diYculties coping in prison may also be at an increased risk of victimisation and
therefore death or other injuries. They may not have the social skills to avoid dangerous situations such as
borrowing tobacco from others and being unable to pay this back, particularly when double the initial
amount is demanded. In the masculine prison environment, where prisoners and staV are expected to solve
their problems through being tough and using violence and aggression, those who show fear, weakness or
resourcelessness or fail to stand up for themselves may be more vulnerable to attack by other prisoners. Any
attempt to reduce violence may therefore be diYcult as prisoners may wish to “save face” to prove their
strength and status when faced with aggression. Furthermore, because the inmate subculture clearly rejects
any notion of “grassing”, informing staV that they are being bullied or intimidated may not be an option
for many prisoners as they may fear the repercussions of this more than the initial victimisation.
4.3 Various aspects of the prison environment, particularly relative deprivation and the limited access
to material goods, as well as overcrowding and limited supervision may explain why bullying and taxing
(intimidation designed to persuade someone to part with goods or money) can flourish within prisons.

5. Practical steps that have already been taken and further steps that need to be taken to prevent suicide and
self-harm in custody
5.1 The most recent Prison Service suicide policy (introduced in 2001) places an emphasis on preventing
suicide through caring for prisoners who are seen to be at high risk of self-destructive behaviour. Resources
are to be concentrated on local prisons through the Safer Locals Programme, and care for prisoners on
reception and induction is to be improved to ensure that the early stages of custody are less stressful,
prisoners have adequate support and contact with others, and any risk factors can be identified.
5.2 This policy also borrows the concept of a “healthy prison” from the Chief Inspector of Prisons’
thematic review of suicide and self-harm (HMCIP 1999)246 and aims to promote a supportive culture where
prisoners are less likely to commit suicide, although it is not really made clear how this might be done. Such
a culture should be a key element in any approach to reducing deaths in custody as there is a need to break
down ideas that only weak prisoners talk about their diYculties, and ensure that prisoners feel comfortable
about approaching staV to discuss their distress.
5.3 Additionally, the policy suggests that mental health staV can help to identify and care for at risk
prisoners and support wing staV, and recommends the establishment of detoxification units to reduce the
risk of substance misusers committing suicide/self-harm in the early stages of their imprisonment. However,
many prisoners may be denied access to such a controlled detoxification if prison medical staV feel that it
is unsuitable or do not believe in giving prisoners what they see as “more drugs”. Detoxification can also
take up to 12 weeks and if a prisoner is moved within this time or released, it may not be possible to complete
the programme which can be worse than no programme at all.
5.4 Whilst these measures are helpful not only in terms of reducing the risk of suicide, but also in
promoting better mental health, there is a danger that the focus of suicide prevention is moving back towards
a medical model, with an emphasis on mental disorder and substance misuse, rather than a multi-
disciplinary approach. Although the policy stresses the role of the whole prison community in creating a
supportive environment, it does not discuss the role of other staV such as teachers, instructors and probation
oYcers, despite the fact that they spend a considerable amount of time with prisoners, and inmates may
choose to confide in them, particularly if they are in distress whilst away from the wing. Such staV therefore
also need to be supported to ensure that they are confident in taking measures to prevent suicide/self-harm,
and the role of activities such as education in ameliorating prisoners’ coping diYculties should not be
underestimated (see paragraph 7.8 below).
5.5 Mental health and enhanced suicide awareness training for front line staV in local prisons is also
recommended in the suicide prevention policy, and since 2001, all new prison oYcer recruits have been given
training in identifying mental health problems. Whilst this is a positive step, it is not clear why this should
not be received by existing oYcers, particularly as there is a danger that when trainees start training “on the
job”, they will accumulate negative attitudes from more experienced oYcers who have not received mental
health training.

246 op cit.
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Ev 132 Joint Committee on Human Rights: Evidence

5.6 In 1999 the Prison Service announced that the use of strip cells for suicidal prisoners would be
abolished by April 2000, as this practice was likely to be challenged under Article 3 of the European
Convention of Human Rights, which protects the right to freedom from torture or inhuman or degrading
treatment or punishment. Strip cells have been widely recognised as unsuitable accommodation for suicidal
prisoners, as inmates are deprived of human contact, and they may actually serve to intensify a sense of
hopelessness and increase suicidal ideas rather than relieving prisoners’ distress.
5.7 Since the abolition of strip cells, “safe cells”; that is, cells that minimise ligature points, have been
installed in health care centres and induction and detoxification units. Although such cells may ensure
compliance with Article 2 and 3 of the European Convention of Human Rights, they, along with other
situational measures such as observation cells with CCTV, may be used as an excuse not to maintain active,
supportive contact with the inmate, and may therefore leave prisoners isolated from others, which is likely
to exacerbate any feelings of hopelessness and any consequent risk of suicide.
5.8 Prisoners who are vulnerable to suicide/self-harm may also be placed in a prison health care centre
for short periods of time in order for staV to observe them and to take them away from the pressures of the
normal prison environment. However, prisoners accommodated in health care centres tend not to have
access to a range of constructive activity, and being placed there may therefore serve to exacerbate a
prisoner’s feelings of boredom and isolation. Some commentators have argued that suicidal inmates should
be placed in shared accommodation in as normal an environment as possible (Medlicott 1999)247. This
would ensure that the suicidal prisoner can receive help from their cell mate (who may or may not be a
Listener), is less likely to feel isolated and would still be able to participate in the prison regime.
Alternatively, vulnerable prisoners could be placed in the facilities for prisoners with special needs which
are described in section 7 below.
5.9 Most prisons in England and Wales operate a Listener scheme, where prisoners are selected and
trained, usually by the local Samaritans group, to befriend other inmates and support those in distress, using
sympathetic but active listening techniques. All discussions are completely confidential, and there is an
emphasis on helping prisoners to help themselves, whilst Listeners remain supported by the Samaritans
through regular feedback sessions. Listener schemes are designed to supplement the work of staV, as it was
seen that prisoners would be better informed about how to cope with periods of despair and would be more
likely to recognise the distress of others (HM Prison Service 1997).248 Although the number of Listeners in
high risk prisons has recently been increased, it should be noted that it may be more diYcult for schemes to
operate in local prisons and remand centres where there is a high turnover of inmates. Additionally, the issue
of confidentiality remains contentious, not only because staV resent the idea that they may not be informed
if prisoners intend to commit self-harm, but also as prisoners may distrust Listeners fearing they may discuss
their problems with staV (HM Prison Service 2001)249.
5.10 Families and friends also need to be included in caring for those at risk of suicide/self-harm. They
may be able to pass on any relevant information or concerns that they may have about an individual
prisoner, and they should be kept informed of any changes in a prisoner’s mental state. Although the latest
Prison Service Order (PSO 2700, issued in November 2002) on suicide and self-harm prevention
recommends that after serious incidents of self-harm, prisoners may be given a phone call or an extra visit,
it is not clear whether the same provisions would exist for those who are clearly in a state of acute distress,
but have not actually self-harmed.

6. Practical steps that have already been taken and further steps that need to be taken to prevent other deaths
or injuries in custody
6.1 In 1993, the first national anti-bullying strategy stressed the need for a “whole prison approach” in
which staV, prisoners and visitors show a commitment to reduce and prevent bullying. This includes
identifying circumstances that are conducive to bullying, constantly reinforcing the strategy to prisoners as
soon as they enter an establishment, and challenging bullies and supporting victims of bullying in an eVort
to change the prison culture. Every establishment is required to have its own anti-bullying policy, and an
anti-bullying co-ordinator to regularly review the symptoms of bullying. Policies may include measures such
as those to encourage prisoners to report victimisation without fear of being seen as a “grass”, and
segregating aggressors rather than victims and ensuring they go through an anti-bullying programme.
However, not all staV members may be aware of the policies which may lead to wide variations in their
eVectiveness (Edgar and O’Donnell 1997)250, and thus there is a need to ensure that all levels of staV are
committed to anti-bullying measures.
6.2 Vulnerable prisoners can ask to be placed on voluntary segregation for their own protection (under
Rule 45), but this may have several negative consequences. Conditions on segregation wings are seen to be
substandard in comparison to those that prevail in the rest of the prisons, and inmates may have little or no

247 Medlicott, D (1999) “Researching the Prison: Prisoners as Knowledgeable Agents”, unpublished paper presented to the
British Criminology Conference 1999, Liverpool, 13–16 July.
248 HM Prison Service (1997) Caring for the Suicidal in Custody, London, Prison Service.
249 HM Prison Service (2001) Prevention of Suicide and Self-Harm in the Prison Service, London, Prison Service.
250 Edgar, K and O’Donnell, I (1997) “Responding to Victimisation”, Prison Service Journal, No 109, pp 15–19.
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Joint Committee on Human Rights: Evidence Ev 133

access to institutional activities such as work, education and gym. Many vulnerable prisoners, particularly
in local prisons, may therefore spend approximately 23 hours a day locked up in their cells, a situation which
may increase a sense of boredom and isolation and psychological problems such as severe anger, sleep
disturbances and depression, thus potentially enhancing the risk of suicide. In some prisons, Vulnerable
Prisoner Units (VPUs) have been developed which oVer the prisoners accommodated there conditions
which are at least approximate to those on normal location. Work, education and association is provided
within the units and prisoners are able to mix more freely amongst themselves. Yet providing separate
facilities for work, exercise, education and visiting may be beyond the budgetary and other resources of most
establishments.
6.3 Protective segregation may also contribute to the identification of weak and vulnerable groups in the
prison, thus adding to their scapegoating and victimisation. It does not address aspects of the prison
subculture which stigmatise and persecute such inmates and prisoners who chose to go on protective
segregation risk being stigmatised as sex oVenders even when they are not, which may make any return to
normal location problematic. Such stigmatisation can be dehumanising and cause great distress.
6.4 In order to counter this stigmatisation, challenge the negative subculture and provide better
conditions for vulnerable prisoners, some prisons have integrated vulnerable prisoners into the main prison
population. At HMP Littlehey vulnerable prisoners are accommodated separately from the rest of the
prison, but are encouraged to participate in work, education and exercise with inmates from the main
population, and eventually move onto normal location. StaV will not tolerate persecution and as the regime
at Littlehey is relatively relaxed, inmates are dissuaded from causing trouble or they risk being transferred.
Vulnerable prisoners could certainly be accommodated with ordinary inmates in small units, containing no
more than 50 to 70 prisoners, as recommended by Woolf (1991)251. Such units would have a liberal regime
so that prisoners would not want to risk being moved oV the unit and would therefore be less inclined to
cause trouble. They may oVer improved standards of surveillance and control and can encourage better
interpersonal relations between staV and prisoners, and may also have the eVect of creating a better sense
of community amongst the prisoners accommodated there, which could discourage them from victimising
others, and encourage them to support those who are being victimised.

7. Facilities for vulnerable prisoners with coping diYculties/special needs


7.1 In some prisons in England and Wales, distinctive units have been set up for prisoners who have a
variety of diVerent problems or “special needs”, such as mental disorders, learning diYculties, or substance
misuse, which make it diYcult for them to cope with prison life. These facilities aim to help such prisoners to
cope by keeping them in a sheltered environment such as a separate landing or wing, where they can receive
assistance with their individual diYculties and be kept away from other prisoners who may seek to harm
them due to their vulnerability. They act as “halfway houses” between the normal prison wings and more
specialist locations where vulnerable prisoners are often placed, such as the Rule 45 unit or the health care
centre. Such facilities accommodate approximately 40 prisoners and are staVed by small teams of supportive
oYcers who receive little or no extra training for this role, but are specially selected for their more
understanding, tolerant approach.
7.2 My doctoral research on the eVectiveness and operation of two of these facilities (B1 at HMP CardiV
and St Patrick’s wing at HMP Camp Hill) found that they could help prisoners cope in several diVerent ways
(Mills 2003)252. Firstly, the prisoners accommodated there particularly seemed to appreciate being kept in
a more sheltered subsetting, away from the rest of the prison. The facilities ameliorated prison pressures
by reducing the unpredictability of prison life and oVering a more supportive environment free from the
constraints of the masculine prison culture and its need to demonstrate toughness, and the majority of
prisoners reported feeling safer there than in other areas of the prison. Furthermore, although both facilities
protected the prisoners from others, B1 encouraged inmates to integrate with other prisoners at work,
education, association etc, whilst St Patrick’s provided opportunities for education and association on the
wing, which meant that these prisoners were able to access constructive regimes which they may not be able
to do on other specialist locations.
7.3 Secondly, staV played a significant role in creating such an ameliorative environment. Having regular
staV working on the facilities meant that better staV-prisoner relations could be built up and oYcers were
well placed to notice any changes or diVerences in a prisoner’s mental or physical state. StaV also seemed
to recognise the need to try to understand prisoners’ complex problems and be tolerant of their behaviour
rather than resorting to disciplinary responses. Many encouraged prisoners to talk to them about their
concerns in the hope of alleviating their distress and reducing the isolation of prison life, and during the
fieldwork, it became evident that many inmates appreciated the regular oYcers’ approachable, friendly
manner. Approximately 40% of prisoners on B1 and 25% of prisoners on St Patrick’s reported that they
would talk to staV working on the facilities about personal problems. Although these figures do not appear
to be high, one study of prison suicide found that only a fifth of prisoners would discuss a problem with

251 Woolf, Lord Justice (1991) Prison Disturbances April 1990: Report of an Inquiry by the Rt Hon Lord Justice Woolf (Parts I
and II) and His Honour Stephen Tumin (Part II), London, HMSO.
252 Mills, A (2003) Coping, Vulnerability and disruption: Facilities for Prisoners with Special Needs, unpublished PhD thesis,

University of Wales, CardiV, June 2003.


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Ev 134 Joint Committee on Human Rights: Evidence

someone (including staV, prisoners and others) (Liebling 1992 op cit). Additionally, when asked what they
would do if they had a problem with another prisoner, most inmates on both facilities said that they would
tell an oYcer, which suggests that the facilities were able to create a safe environment where inmates feel
comfortable about approaching staV about such matters, as suggested in the Prison Service’s anti-
bullying strategy.
7.4 The research has also shown that there is a need to understand how a prisoner’s “special needs” can
aVect their coping diYculties. The thesis looked at four specific areas of special need found amongst the
prisoners accommodated on the facilities—health problems, substance misuse, educational diYculties and
physical disabilities—and found that some could have a considerable impact on prisoners’ ability to cope.
Prisoners with mental health problems may feel too ill to participate in constructive activity due to their
medication, which may leave them feeling unable to alleviate any feelings of boredom. Substance misusers
who may have previously depended on a substance to cope with life outside of prison, may find it diYcult
to cope without this in prison and any physical or psychological withdrawal symptoms may also leave them
unable to participate in prison life and with an enhanced sense of anxiety and fear. Finally, those with
educational diYculties or learning disabilities may be more limited in the way that they can keep themselves
occupied whilst in prison and may be more susceptible to feelings of isolation due to greater communication
diYculties with family and friends.
7.5 The facilities did, however, provide some specialist assistance to help to meet prisoners’ special needs
and thus try to alleviate their coping diYculties. For example, St Patrick’s wing holds specialist education
classes to improve prisoners’ basic and life skills as well as giving them some form of constructive activity,
and oVers access to a community psychiatric nurse who works on the wing three days a week. All staV
working on the wing also attend a weekly meeting where individual prisoners are discussed to monitor their
progress and note any problems that they may be having.
7.6 In order to help prisoners cope with prison life and thus reduce vulnerability to suicide/self-harm and
victimisation, these facilities could be replicated across the prison estate, as they appear to oVer a more
constructive alternative to situational suicide and victimisation prevention measures. However, they do need
to be developed and improved, and as these prisoners have a variety of diVerent problems, a multi-
disciplinary approach is necessary with more services to help them with their special needs and thus their
diYculties coping in prison. This could be based around the multi-disciplinary mental health in-reach teams
which are to be introduced into prisons. These consist of a range of mental health professionals from the
community who will provide services to prisoners accommodated on normal prison wings in the same way
that they do to patients in the community, and the facilities seem to be an ideal setting for these services.
Such mental health teams may also include occupational therapists who can play a significant role in helping
prisoners to cope with their imprisonment. Occupational therapy or day care may allow them to express
feelings that they are unable to discuss, as well as providing them with constructive activity. In order to best
meet the variety of needs that these inmates have, day care could cover a number of diVerent subjects and
could be carried out by a team of diVerent staV including oYcers, teachers, psychiatric nurses, psychologists
and drug/alcohol counsellors, particularly as recruiting forensic occupational therapists to run such
provision may be diYcult due to a shortage of staV specialising in this area.
7.7 Such a multi-disciplinary approach also needs to include comprehensive drug treatment ranging from
suitable detox medication, awareness courses and more intensive treatment programmes. Although new
detoxification units will go some way towards providing this help, the evidence suggests that current drug
treatment provision is unable to cope with the extremely high demand for it, particularly in local prisons.
Furthermore, as mental health problems and substance misuse are two issues which may exacerbate any
diYculties coping with prison life, there is also a need to ensure that services are provided for prisoners with
a “dual diagnosis”; that is, a mental disorder and substance misuse problem. Such prisoners have
traditionally fallen through the gap in provision, as mental health services have refused to treat them due
to their substance misuse and drug agencies have turned them away due to their mental health problems.
The Department of Health (2002)253 has recently introduced a dual diagnosis strategy which suggests that
mental health services will take primary responsibility for patients with a severe mental illness and substance
misuse problem, with drug agencies providing them with specialist training and support. Conversely, mental
health services should oVer support to drug and alcohol agencies to enable them to deal eVectively with those
with less severe mental health problems, and there is no reason why such a strategy could not be introduced
into prisons to provide appropriate care for these prisoners.
7.8 Other agencies and groups could also be involved in providing multi-disciplinary care to prisoners
with special needs. The training in mental health awareness which is now given to new prison oYcer recruits
could be given to the staV working in these facilities so that they can identify anyone showing signs of stress
or anxiety and give appropriate support. Furthermore, education classes like those provided on St Patrick’s
wing can provide a forum for prisoners to discuss their concerns with others, including the teachers, within
a “humanising” environment, which may go some way to ameliorate the coping diYculties that these
prisoners have. However, in order to do this, education should be more broad than the current rather narrow

253 Department of Health (2002) Mental Health Policy Implementation Guide: Dual Diagnosis Good Practice Guide, London,
Department of Health.
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Joint Committee on Human Rights: Evidence Ev 135

emphasis on basic skills and should include subjects such as art, which may not necessarily lead to a
vocational qualification, but may improve prisoners’ self-esteem and general attitudes towards themselves
and others.

8. Fostering a greater human rights culture


8.1 Fostering a human rights culture in prison is diYcult when a negative view of prisoners’ rights is likely
to be reinforced by those in the outside community to which staV return every day. Among staV, “rights”
talk may generate suspicion as they may believe that it will mean that prisoners have more scope to litigate
against them. Fear of being blamed for a breach of human rights, particularly in terms of preventing deaths
in custody, may lead to an overcautious approach as staV may be tempted to resort to situational measures
such as “safe” cells or encouraging prisoners to go onto Rule 45 rather than attempting to reduce their
vulnerability by oVering them personal support and improving their coping abilities. Furthermore, a human
rights approach may generate resentment among staV as they may feel that more attention is being placed
on improving conditions for prisoners rather than their own working conditions.
8.2 There is therefore a real need for management commitment to support staV in order to encourage
them to adopt a human rights approach. This might include not only training, but also supporting staV
initiatives which do promote human rights. The staV working on the facilities discussed in section 7 had
many ideas as to how the units could be developed, but these were often ignored due to budgetary
constraints, overcrowding and lack of management commitment, leaving staV feeling disappointed and
demoralised. If such measures do not receive the appropriate commitment and financial resources, they can
be vulnerable to being closed down when, for example, a new governor is appointed, or when a key
individual leaves the project, and no-one can be found to take their place.
8.3 Finally, there is also a need to act in the interests of prisoners in order to promote humanity and care
in prisons, rather than in the interests of prisons who may wish to simply avoid legal action under the Human
Rights Act 1998. This could include utilising more social measures to prevent deaths in custody, such as the
facilities for special needs prisoners which attempt to tackle vulnerability, rather than situational approaches
which deal in terms of risk and simply trying to manage risk predictors.
5 September 2003

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